Employee Benefit Plans; Labor Matters. (a) With respect to each employee benefit plan, policy, commitment, program, arrangement and contract (including, without limitation, any employee benefit plan, as defined in SECTION 3(3) of ERISA, sponsored, maintained or contributed to, or to which there is an obligation to contribute, by A, or with respect to which A could incur liability under Title IV of ERISA, including, but not limited to, SECTION 4069, 4212(c) or 4204 of ERISA (the "A BENEFIT PLANS"), A has delivered or made available to B and the Company a true and correct copy of (i) the most recent summary plan description related to each A Benefit Plan and all amendments thereto for which a summary plan description is required, (ii) each trust agreement relating to such Benefit Plan, (iii) the most recent annual report (Form 5500) filed with the IRS, (iv) the most recent actuarial report and/or financial statement, if any, relating to an A Benefit Plan, (v) the most recent determination letter, if any, issued by the IRS with respect to any A Benefit Plan qualified under SECTION 401(a) of the Code, (vi) all material communications with any Governmental Authority (including the Pension Benefit Guaranty Corporation and the IRS) given or received within the last three years, and (vii) a description of all unwritten A Benefit Plans, if any. (b) To the knowledge of A, each A Benefit Plan has been administered in all material respects in accordance with its terms and all contributions required to be made under the terms of any of the A Benefit Plans as of the date hereof have been timely made or have been reflected on A's most recent consolidated balance sheet. All of the A Benefit Plans are in compliance with all applicable requirements of Law, including ERISA and the Code, except to the extent that any such noncompliance would not have an A Material Adverse Effect. (c) There are no pending actions, claims or lawsuits that have been asserted regarding the A Benefit Plans directly or, to the knowledge of A, against any fiduciary of any A Benefit Plan with respect to their operation (other than routine benefit claims) which could result in liability. (d) There is no A Benefit Plan that is a "multiemployer plan" (within the meaning of SECTION 3(37) of ERISA). (e) Each A Benefit Plan which is a "group health plan" (as defined in SECTION 607(1) of ERISA) is in compliance with SECTION 601 et seq. of ERISA, the Health Insurance Portability and Accountability Act and any other applicable federal, state or local law. (f) Neither A nor any subsidiary of A is a party to any collective bargaining or other labor union contract applicable to persons employed by A or any subsidiary of A and neither A nor any subsidiary of A is negotiating any collective bargaining agreements. As of the date hereof, there is no labor dispute, strike or work stoppage against A or any subsidiary of A pending or, to the knowledge of A, threatened in writing which may interfere with the business activities of A, except where such dispute, strike or work stoppage would not have an A Material Adverse Effect. As of the date hereof, to the knowledge of A, none of A or any subsidiary of A or their respective representatives or employees, has committed any unfair labor practices in connection with the operation of the business of A or any of its subsidiaries, and there is no charge or complaint against A or any subsidiary of A by the National Labor Relations Board or any comparable federal or state agency pending or threatened in writing, except where such unfair labor practice, charge or complaint would not have an A Material Adverse Effect. (g) A has delivered to B true and correct copies of (i) all employment agreements with officers of A and the subsidiaries of A; (ii) all severance plans, agreements, programs and policies of A and the subsidiaries of A with or relating to their employees; (iii) all plans, programs, agreements and other arrangements intended to satisfy the performance-based exception under SECTION 162(m) of the Code; and (iv) all plans, programs, agreements and other arrangements of A and the subsidiaries of A with or relating to their respective employees which contain change in control provisions. (h) Except as required by Law, no A Benefit Plan provides, or has liability with respect to, retiree medical or other retiree welfare benefits to any person. (i) A is not a party to any agreement or arrangement that would result, separately or in the aggregate, in the payment of any "excess parachute payments" within the meaning of SECTION 280G of the Code (disregarding SECTION 280G(b)(4) of the Code). (j) The consummation of the transactions contemplated by this Agreement will not (i) entitle any current or former employee of A to severance pay, unemployment compensation or any similar payment; (ii) accelerate the time of payment or vesting of, or increase the amount of, any compensation due to any current or former employee of A; (iii) reasonably be expected to result in any "excess parachute payment" under SECTION 280G of the Code; or (iv) result in any material liability to any present or former employee, including as a result of WARN. (k) A has no material liability, whether absolute or contingent, including any material obligations under any A Benefit Plan, with respect to any misclassification of any person as an independent contractor rather than as an employee, or with respect to any employee leased from another employer. (l) A has not entered into any transaction with any A Benefit Plan. (m) In respect of all employees of A (other than A's current Chief Executive Officer and A's current Chief Financial Officer), liabilities of A and its subsidiaries in respect of any (i) severance payments and (ii) payments in respect of the cancellation of outstanding A Options in accordance with SECTION 2.05 hereof, arising in connection with the consummation of the A Merger, shall not exceed $1,300,000 in the aggregate. (n) SECTION 4.10(n) of the A Disclosure Schedule sets forth (i) a true and correct list of all individuals who would be entitled to severance payments pursuant to an individual agreement with A or any of its subsidiaries and the amount of cash severance payments to which each such person would be entitled and (ii) with respect to any formal or informal severance program, plan or arrangement of A or any of its subsidiaries that does not involve an individual agreement between A or any of its subsidiaries and any individual, (A) a brief written description of such program, plan or arrangement and (B) the number of individuals entitled to severance benefits under such program, plan or arrangement. (o) To the knowledge of A based on a good faith interpretation of the Stabilization Act, (i) except as set forth in SECTION 4.10(o) of the A Disclosure Schedule, no A employee's or officer's total compensation (within the meaning of the Stabilization Act) exceeded $300,000 in calendar year 2000 and (ii) with respect to any persons so identified pursuant to clause (i), A has not made or promised to make any payments or taken any action which may adversely affect the Company's ability to obtain a Federal credit instrument under SECTION 101(a)(1) of the Stabilization Act.
Appears in 3 contracts
Samples: Merger Agreement (Airline Investors Partnership Lp), Merger Agreement (Brenneman Gregory D), Merger Agreement (Hawaiian Airlines Inc/Hi)
Employee Benefit Plans; Labor Matters. (a) With respect to each Each employee benefit plan, policyprogram and arrangement, commitmentand each employment, programtermination, arrangement and severance or other contract (includingor agreement, without limitation, any employee benefit plan, as defined in SECTION 3(3) of ERISA, sponsored, maintained or contributed to, or to which there MeriStar or any of the MeriStar Subsidiaries is an obligation to contribute, by A, or a party with respect to which A MeriStar or any of the MeriStar Subsidiaries has any obligation or which are maintained, contributed to or sponsored by MeriStar or any of the MeriStar Subsidiaries for the benefit of any current or former employee, officer or director of MeriStar or any of the MeriStar Subsidiaries under which plan, program, arrangement, contract or agreement total payments of more than $100,000 may be required to be made by MeriStar or a MeriStar Subsidiary (collectively, the "MeriStar Benefit Plans") are listed on Section 3.10(a) of the MeriStar Disclosure Letter. Except for those matters listed on Section 3.10(a) of the MeriStar Disclosure Letter and such matters as, individually or in the aggregate, have not and could incur not reasonably be expected to result in a Material Adverse Effect on MeriStar:
(i) to the knowledge of MeriStar, each MeriStar Benefit Plan and any related trust intended to be qualified under Sections 401(a) and 501(a) of the Code has received a favorable determination letter from the IRS that it is so qualified, and to the knowledge of MeriStar, nothing has occurred since the date of such letter that could materially adversely affect the qualified status of such MeriStar Benefit Plan or related trust;
(ii) to the knowledge of MeriStar, each MeriStar Benefit Plan has been operated in accordance with the terms and requirements of applicable Law, and all required returns and filings for each MeriStar Benefit Plan have been timely made;
(iii) to the knowledge of MeriStar, neither MeriStar nor any of the MeriStar Subsidiaries has incurred any direct or indirect liability under under, arising out of or by operation of Title I or Title IV of the Employee Retirement Income Security Act of 1974, as amended ("ERISA, including, but not limited to, SECTION 4069, 4212(c") or 4204 comparable provisions of ERISA (the "A BENEFIT PLANS"), A has delivered or made available to B and the Company a true and correct copy of (i) the most recent summary plan description related to each A Code in connection with any MeriStar Benefit Plan or other retirement plan or arrangement, and all amendments thereto for which a summary plan description is requiredto the knowledge of MeriStar, (ii) each trust agreement relating no fact or event exists that could reasonably be expected to give rise to any such Benefit Plan, (iii) the most recent annual report (Form 5500) filed with the IRS, liability;
(iv) to the most recent actuarial report and/or financial statementknowledge of MeriStar, if any, relating to an A all contributions due and payable on or before the date hereof in respect of each MeriStar Benefit Plan, Plan have been made in full and in proper form;
(v) to the most recent determination letterknowledge of MeriStar, if anyneither MeriStar nor any of the MeriStar Subsidiaries has ever sponsored or been obligated to contribute to any "multiemployer plan" (as defined in Section 3(37) of ERISA), issued "multiple employer plan" (as defined in Section 413 of the Code) or "defined benefit plan" (as defined in Section 3(35) of ERISA);
(vi) except as otherwise required under ERISA, the Code and applicable Law, to the knowledge of MeriStar, no MeriStar Benefit Plan currently or previously maintained by MeriStar or any of the IRS MeriStar Subsidiaries provides any post-retirement health or life insurance benefits in the future;
(vii) to the knowledge of MeriStar, all reporting and disclosure obligations imposed under ERISA and the Code have been satisfied with respect to each MeriStar Benefit Plan; and
(viii) to the knowledge of MeriStar, neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (A) result in the payment of separation, severance, termination, "golden parachute" or similar-type benefits to any A person, (B) materially increase any benefits otherwise payable under any MeriStar Benefit Plan qualified under SECTION 401(aor otherwise, (C) result in any acceleration of the time of payment or vesting of any material benefits, (D) trigger a requirement for funding or the acceleration of funding of any material benefits or (E) commence a period during which a subsequent termination of employment by an employee of MeriStar or any MeriStar Subsidiary will entitle such employee to benefits in excess of what would otherwise have been required in the absence of the transactions contemplated hereby. No benefit or amount payable or that may become payable by MeriStar or any of the MeriStar Subsidiaries as a result of any transaction contemplated by this Agreement will constitute an "excess parachute payment," within the meaning of Section 280G of the Code, (vi) all material communications with which is or may be subject to the imposition of any Governmental Authority (including excise tax under Section 4999 of the Pension Benefit Guaranty Corporation and Code or which would not be deductible by reason of Section 280G of the IRS) given or received within the last three years, and (vii) a description of all unwritten A Benefit Plans, if anyCode.
(b) To the knowledge of AMeriStar, each A MeriStar Benefit Plan is in writing, and MeriStar has been administered made available to ASC a complete and accurate copy of each MeriStar Benefit Plan and a complete and accurate copy of each material document prepared in all material respects in accordance connection with its terms and all contributions required to be made under the terms of any of the A Benefit Plans as of the date hereof have been timely made or have been reflected on A's most recent consolidated balance sheet. All of the A Benefit Plans are in compliance with all applicable requirements of Laweach such Plan, including ERISA without limitation, a copy of (i) each trust or other funding arrangement, (ii) each summary plan description and summary of material modification, (iii) the Codemost recently filed IRS Form 5500, except to (iv) the extent that any most recently received IRS determination letter for each such noncompliance would not have an A Material Adverse EffectPlan, and (v) the most recently prepared actuarial report and financial statement in connection with each such Plan.
(c) There are no pending actions, claims or lawsuits that have been asserted regarding Except as set forth in Section 3.10(c) of the A Benefit Plans directly orMeriStar Disclosure Letter, to the knowledge of AMeriStar, against any fiduciary of any A Benefit Plan with respect to their operation (other than routine benefit claims) which could result in liability.
(d) There is no A Benefit Plan that is a "multiemployer plan" (within the meaning of SECTION 3(37) of ERISA).
(e) Each A Benefit Plan which is a "group health plan" (as defined in SECTION 607(1) of ERISA) is in compliance with SECTION 601 et seq. of ERISA, the Health Insurance Portability and Accountability Act and any other applicable federal, state or local law.
(f) Neither A neither MeriStar nor any subsidiary of A the MeriStar Subsidiaries is a party to to, or is bound by, any collective bargaining agreement, contract or other agreement or understanding with a labor union or other labor union contract applicable organization. MeriStar has made available true, correct and complete copies of all such agreements to persons employed by A ASC. Except as set forth in Section 3.10(c) of the MeriStar Disclosure Letter and except as individually or in the aggregate, has not resulted and would not reasonably be expected to result, in a Material Adverse Effect on MeriStar, (A) currently there are no organizational campaigns, petitions or other unionization activities seeking recognition of a collective bargaining unit which could affect MeriStar or any subsidiary of A and neither A nor any subsidiary of A is negotiating any collective bargaining agreements. As of the date hereofMeriStar Subsidiary; (B) there are no controversies, there is no labor disputestrikes, strike slowdowns or work stoppage against A or any subsidiary of A stoppages pending or, to the best knowledge of AMeriStar, after due inquiry, threatened in writing which may interfere with between MeriStar or any of the business activities MeriStar Subsidiaries and any of Atheir respective employees, except where and neither MeriStar nor any of the MeriStar Subsidiaries has experienced any such disputecontroversy, strike strike, slowdown or work stoppage would not have an A Material Adverse Effect. As of within the date hereof, to the knowledge of A, none of A or any subsidiary of A or their respective representatives or employees, has committed any unfair labor practices in connection with the operation of the business of A past three years; (C) neither MeriStar or any of its subsidiaries, the MeriStar Subsidiaries has breached or otherwise failed to comply with the provisions of any collective bargaining or union contract and there is are no charge or complaint grievances outstanding against A MeriStar or any subsidiary MeriStar Subsidiary under any such agreement or contract; and (D) there are no unfair labor practice complaints pending against MeriStar or any of A by the MeriStar Subsidiaries before the National Labor Relations Board or any comparable federal other Governmental Entity or state agency pending or threatened in writing, except where such unfair labor practice, charge or complaint would not have an A Material Adverse Effect.
(g) A has delivered to B true and correct copies of (i) all employment agreements with officers of A and the subsidiaries of A; (ii) all severance plans, agreements, programs and policies of A and the subsidiaries of A with or relating to their employees; (iii) all plans, programs, agreements and other arrangements intended to satisfy the performance-based exception under SECTION 162(m) of the Code; and (iv) all plans, programs, agreements and other arrangements of A and the subsidiaries of A with or relating to their respective employees which contain change in control provisions.
(h) Except as required by Law, no A Benefit Plan provides, or has liability with respect to, retiree medical or other retiree welfare benefits to any person.
(i) A is not a party to any agreement or arrangement that would result, separately or in the aggregate, in the payment of any "excess parachute payments" within the meaning of SECTION 280G of the Code (disregarding SECTION 280G(b)(4) of the Code).
(j) The consummation of the transactions contemplated by this Agreement will not (i) entitle any current or former employee of A to severance pay, unemployment compensation or any similar payment; (ii) accelerate the time of payment or vesting of, or increase the amount of, any compensation due to any current or former employee of A; (iii) reasonably be expected to result in any "excess parachute payment" under SECTION 280G of the Code; or (iv) result in any material liability to any present or former employee, including as a result of WARN.
(k) A has no material liability, whether absolute or contingent, including any material obligations under any A Benefit Plan, with respect to any misclassification of any person as an independent contractor rather than as an employee, or with respect to any employee leased from another employer.
(l) A has not entered into any transaction with any A Benefit Plan.
(m) In respect of all union representation questions involving employees of A (other than A's current Chief Executive Officer and A's current Chief Financial Officer), liabilities of A and its subsidiaries in respect of any (i) severance payments and (ii) payments in respect of the cancellation of outstanding A Options in accordance with SECTION 2.05 hereof, arising in connection with the consummation of the A Merger, shall not exceed $1,300,000 in the aggregate.
(n) SECTION 4.10(n) of the A Disclosure Schedule sets forth (i) a true and correct list of all individuals who would be entitled to severance payments pursuant to an individual agreement with A MeriStar or any of its subsidiaries and the amount of cash severance payments to which each such person would be entitled and (ii) with respect to any formal or informal severance program, plan or arrangement of A or any of its subsidiaries that does not involve an individual agreement between A or any of its subsidiaries and any individual, (A) a brief written description of such program, plan or arrangement and (B) the number of individuals entitled to severance benefits under such program, plan or arrangementMeriStar Subsidiaries.
(o) To the knowledge of A based on a good faith interpretation of the Stabilization Act, (i) except as set forth in SECTION 4.10(o) of the A Disclosure Schedule, no A employee's or officer's total compensation (within the meaning of the Stabilization Act) exceeded $300,000 in calendar year 2000 and (ii) with respect to any persons so identified pursuant to clause (i), A has not made or promised to make any payments or taken any action which may adversely affect the Company's ability to obtain a Federal credit instrument under SECTION 101(a)(1) of the Stabilization Act.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Meristar Hotels & Resorts Inc), Merger Agreement (American Skiing Co /Me), Merger Agreement (Oak Hill Capital Partners L P)
Employee Benefit Plans; Labor Matters. (a) With respect to each employee benefit plan, policy, commitment, program, arrangement and contract (including, without limitation, any "employee benefit plan", as defined in SECTION Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), sponsored, maintained or contributed to, or to which there is an obligation to contribute, by AB, or with respect to which A B could incur liability under Title IV of ERISA, including, but not limited to, SECTION 4069, 4212(c) or 4204 of ERISA (the "A B BENEFIT PLANS"), A B has delivered or made available to B A and the Company a true and correct copy of (i) such B Benefit Plan and all amendments thereto and the most recent summary plan description related to each A B Benefit Plan and all amendments thereto for which a summary plan description is required, (ii) each trust agreement relating to such Benefit Plan, (iii) the most recent annual report (Form 5500) filed with the Internal Revenue Service (the "IRS"), (iv) the most recent actuarial report and/or financial statement, if any, relating to an A any B Benefit Plan, (v) the most recent determination letter, if any, issued by the IRS with respect to any A B Benefit Plan qualified under SECTION 401(a) of the Code, (vi) all material communications with any Governmental Authority (including the Pension Benefit Guaranty Corporation and the IRS) given or received within the last three years, and (vii) a description of all unwritten A B Benefit Plans, if any.
(b) To the knowledge of AB, each A B Benefit Plan has been administered in all material respects in accordance with its terms and all contributions required to be made under the terms of any of the A B Benefit Plans as of the date hereof have been timely made or have been reflected on A's the most recent consolidated balance sheetsheet filed or incorporated by reference in the B SEC Reports prior to the date hereof. All of the A B Benefit Plans are in compliance with all applicable requirements of Law, including ERISA and the Code, except to the extent that any such noncompliance non-compliance would not have an A a B Material Adverse Effect.
(c) There are no pending actions, claims or lawsuits that have been asserted regarding the A B Benefit Plans directly or, to the knowledge of AB, against any fiduciary of any A B Benefit Plan with respect to their operation (other than routine benefit claims) which could result in liability.
(d) There is no A B Benefit Plan that is a "multiemployer plan" (within the meaning of SECTION Section 3(37) of ERISA).
(e) Each A B Benefit Plan which is a "group health plan" (as defined in SECTION 607(1) of ERISA) is in compliance with SECTION Section 601 et seq. of ERISA, the Health Insurance Portability and Accountability Act and any other applicable federal, state or local lawLaw.
(f) Neither A nor any subsidiary of A B is not a party to any collective bargaining or other labor union contract applicable to persons employed by A or any subsidiary of A B and neither A nor any subsidiary of A is not negotiating any collective bargaining agreements. As of the date hereof, there is no labor dispute, strike or work stoppage against A or any subsidiary of A B pending or, to the knowledge of AB, threatened in writing which may interfere with the business activities of AB, except where such dispute, strike or work stoppage would not have an A a B Material Adverse Effect. As of the date hereof, to the knowledge of AB, none of A B or any subsidiary of A or their respective its representatives or employees, has committed any unfair labor practices in connection with the operation of the business of A or any of its subsidiariesB, and there is no charge or complaint against A or any subsidiary of A B by the National Labor Relations Board or any comparable federal or state agency pending or threatened in writing, except where such unfair labor practice, charge or complaint would not have an A a B Material Adverse Effect.
(g) A B has delivered to B A true and correct copies of (i) all employment agreements with officers of A and the subsidiaries of AB; (ii) all severance plans, agreements, programs and policies of A and the subsidiaries of A B with or relating to their its employees; (iii) all plans, programs, agreements and other arrangements intended to satisfy the performance-based exception under SECTION Section 162(m) of the Code; and (iv) all plans, programs, agreements and other arrangements of A and the subsidiaries of A B with or relating to their respective its employees which contain change in control provisions.
(h) Except as required by Law, no A B Benefit Plan provides, or has liability with respect to, retiree medical or other retiree welfare benefits to any person.
(i) A B is not a party to any agreement or arrangement that would result, separately or in the aggregate, in the payment of any "excess parachute payments" within the meaning of SECTION Section 280G of the Code (disregarding SECTION Section 280G(b)(4) of the Code).
(j) The consummation of the transactions contemplated by this Agreement will not (i) entitle any current or former employee of A B to severance pay, unemployment compensation or any similar payment; (ii) accelerate the time of payment or vesting of, or increase the amount of, any compensation due to any current or former employee of AB; (iii) reasonably be expected to result in any "excess parachute payment" under SECTION Section 280G of the Code; or (iv) result in any material liability to any present or former employee, including as a result of WARN.
(k) A B has no material liability, whether absolute or contingent, including any material obligations under any A B Benefit Plan, with respect to any misclassification of any person as an independent contractor rather than as an employee, or with respect to any employee leased from another employer.
(l) A B has not entered into any transaction with any A B Benefit Plan.
(m) In respect of all employees of A (other than A's current Chief Executive Officer and A's current Chief Financial Officer), liabilities of A and its subsidiaries in respect of any (i) severance payments and (ii) payments in respect of the cancellation of outstanding A Options in accordance with SECTION 2.05 hereof, arising in connection with the consummation of the A Merger, shall not exceed $1,300,000 in the aggregate.
(n) SECTION 4.10(n3.10(m) of the A B Disclosure Schedule sets forth (i) a true and correct list of all individuals who would be entitled to severance payments pursuant to an individual agreement with A or any of its subsidiaries B and the amount of cash severance payments to which each such person would be entitled thereunder and (ii) with respect to any formal or informal severance program, plan or arrangement of A or any of its subsidiaries B that does not involve an individual agreement between A or any of its subsidiaries B and any individual, (A) a brief written description of such program, plan or arrangement and (B) the number of individuals entitled to severance benefits under such program, plan or arrangement.
(n) SECTION 3.10(n) of the B Disclosure Schedule sets forth a true and correct list of all persons who hold B Options, and sets forth, for each such person, (i) the number of shares of B Common Stock underlying the B Options held by such person as of the date hereof, (ii) the exercise price per share with respect to each such B Option, (iii) the expiration date for such B Option, and (iv) the Cash-Out Amount (as defined below) with respect to the B Options (whether or not vested) that are held by such person. For purposes of this Agreement, "CASH-OUT AMOUNT" shall mean, with respect to each share of B Common Stock underlying a B Option (whether or not vested), $4.00 minus the exercise price per share of such B Option.
(o) To the knowledge of A B based on a good faith interpretation of the Air Transportation Safety and System Stabilization ActAct (the "STABILIZATION ACT"), (i) except as set forth in SECTION 4.10(oSection 3.10(o) of the A B Disclosure Schedule, no A B employee's or officer's "total compensation compensation" (within the meaning of the Stabilization Act) exceeded $300,000 in calendar year 2000 and (ii) with respect to any persons so identified pursuant to clause (i), A B has not made or promised to make any payments or taken any action which may adversely affect the Company's ability to obtain a Federal credit instrument under SECTION Section 101(a)(1) of the Stabilization Act.
Appears in 3 contracts
Samples: Merger Agreement (Airline Investors Partnership Lp), Merger Agreement (Brenneman Gregory D), Merger Agreement (Hawaiian Airlines Inc/Hi)
Employee Benefit Plans; Labor Matters. (a) With respect to SECTION 5.9(A) of the Company Disclosure Statement sets forth a true and complete list as of the date hereof of each material employee benefit plan, policy, commitment, program, arrangement and contract plan (including, without limitation, any employee benefit plan, as defined in SECTION Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA, sponsored, maintained ")) and contract for employment or contributed to, or to which there is an obligation to contribute, by A, or with respect to which A could incur liability under Title IV of ERISAbenefits, including, but not limited to, SECTION 4069severance or change of control agreements, 4212(cmaintained, or contributed to, by the Company or any of its Subsidiaries, or to which the Company or any of its Subsidiaries or any entity described in Section 4.14(b), (c) or 4204 (m) of ERISA the Code is required to contribute (the "A COMPANY BENEFIT PLANS"). With respect to each Company Benefit Plan, A the Company has heretofore delivered or made available to B Parent a true, correct and the Company a true and correct complete copy of (i) each material writing constituting a part of such Company Benefit Plan, including without limitation all plan documents, trust agreements, and insurance contracts and other funding vehicles; (ii) the most recent summary plan description related to each A Benefit Plan Annual Report (Form 5500 Series) and all amendments thereto for which a summary plan description is requiredaccompanying schedule, (ii) each trust agreement relating to such Benefit Plan, if any; (iii) the most recent annual report current summary plan description and any material modifications thereto, if any (Form 5500) filed with the IRSin each case, whether or not required to be furnished under ERISA); (iv) the most recent actuarial report and/or annual financial statementreport, if any, relating to an A Benefit Plan, ; (v) the most recent determination letteractuarial report, if any; and (vi) the most recent determination letter from the Internal Revenue Service (the "IRS"), issued by if any. Except as provided in the IRS with foregoing documents delivered to Parent, there are no amendments to any Company Benefit Plan that have been adopted or approved nor has the Company or any of its Subsidiaries undertaken to make any such amendments or to adopt or approve any new plan.
(b) With respect to any A each Company Benefit Plan qualified under SECTION 401(a) which is subject to Title IV of ERISA, or Section 302 of ERISA or Section 412 or 4971 of the Code, (vii) the present value of accrued benefits under such Company Benefit Plan, based upon the actuarial assumptions used for funding purposes in the most recent actuarial report prepared by such Company Benefit Plan's actuary with respect to such Company Benefit Plan, did not, as of its latest valuation date, exceed the then current value of the assets of such Company Benefit Plan allocable to such accrued benefits, (ii) no "reportable event" (within the meaning of Section 4043 of ERISA) has occurred with respect to any Company Benefit Plan for which the 30-day notice requirement has not been waived, (iii) there does not exist any accumulated funding deficiency within the meaning of Section 412 of the Code or Section 302 of ERISA, whether or not waived, (iv) all material communications with any Governmental Authority (including premiums to the Pension Benefit Guaranty Corporation and ("PBGC") have been timely paid in full, (v) no liability (other than for premiums to PBGC) under Title IV of ERISA has been or is expected to be incurred by the IRS) given Company or received within any of its Subsidiaries with respect to a Company Benefit Plan to which contributions have been made, or an obligation to make contributions has been present, during the last three six years, (vi) the PBGC has not instituted proceedings to terminate any such Company Benefit Plan and, to the Company's knowledge, no condition exists that presents a risk that such proceedings will be instituted or which would constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any such Company Benefit Plan and (vii) there does not exist any liability of the Company as a description result of all unwritten A Benefit Plansa failure to comply with the continuation coverage requirements of Section 601 et seq. of ERISA and Section 4980B of the Code, if any.
(b) To except where the knowledge of A, each A Benefit Plan has been administered in all material respects in accordance with its terms and all contributions required to be made under the terms failure of any of the A foregoing to be true would not, individually or in the aggregate, reasonably be expected to have a Material Adverse Effect on the Company. No Company Benefit Plan is a "multiemployer pension plan" (as such term is defined in Section 3(37) of ERISA) (a "MULTIEMPLOYER PLAN") or a plan that has two or more contributing sponsors, at least two of whom are not under common control within the meaning of Section 4063 of ERISA (a "MULTIPLE EMPLOYER PLAN"). Neither the Company nor any of its Subsidiaries has at any time during the last six years, (A) contributed to or been obligated to contribute to any Multiemployer Plan or Multiple Employer Plan or (B) incurred any withdrawal liability to a Multiemployer Plan as a result of a complete or partial withdrawal from such Multiemployer Plan, that has not been satisfied in full.
(c) Each of the Company Benefit Plans as has been operated and administered in accordance with applicable Laws and administrative rules and regulations of the date hereof have been timely made or have been reflected on A's most recent consolidated balance sheet. All of the A Benefit Plans are in compliance with all applicable requirements of Lawany Governmental Entity, including including, but not limited to, ERISA and the Code, except to the extent that where a violation of any such noncompliance Law, rule or regulation would not not, individually or in the aggregate, reasonably be expected to have an A a Material Adverse Effect.
(c) There are no pending actions, claims or lawsuits that have been asserted regarding Effect on the A Company. Each of the Company Benefit Plans directly intended to be "qualified" within the meaning of Section 401(a) of the Code has received a favorable determination letter as to such qualification from the IRS or, to the knowledge of A, against any fiduciary of any A Benefit Plan with respect to plans qualified in Puerto Rico, from the Treasury Department of the Commonwealth of Puerto Rico, and no event has occurred, either by reason of any action or failure to act, which would cause the loss of any such qualification, except where such action or failure to act can be cured without having, individually or in the aggregate, a Material Adverse Effect on the Company. No Company Benefit Plan provides benefits, including, without limitation, death or medical benefits (whether or not insured), with respect to current or former employees of the Company or any Subsidiary thereof beyond their operation (retirement or other termination of service, other than routine benefit claims(i) coverage mandated by applicable Law, (ii) death benefits or retirement benefits under any "employee pension plan" (as such term is defined in Section 3(2) of ERISA), (iii) deferred compensation benefits accrued as liabilities on the books of the Company or any Subsidiary thereof or (iv) benefits the full cost of which could result is borne by the current or former employee (or his beneficiary). All contributions or other amounts accrued or due from the Company or any Subsidiary thereof as of the Effective Time with respect to each Company Benefit Plan in liabilityrespect of current or prior plan years will have been paid or accrued by such time in accordance with GAAP.
(d) There is no A Benefit Plan that is a "multiemployer plan" (within Neither the meaning of SECTION 3(37) of ERISA).
(e) Each A Benefit Plan which is a "group health plan" (as defined in SECTION 607(1) of ERISA) is in compliance with SECTION 601 et seq. of ERISA, the Health Insurance Portability and Accountability Act and any other applicable federal, state or local law.
(f) Neither A Company nor any subsidiary of A Subsidiary thereof is a party to any collective bargaining or other labor union contract applicable to persons employed by A the Company or any subsidiary of A Subsidiary thereof, and neither A nor any subsidiary of A is negotiating any no collective bargaining agreementsagreement or other labor union contract is being negotiated by the Company or any Subsidiary thereof. As of the date hereof, there There is no labor dispute, strike strike, slowdown or work stoppage against A the Company or any subsidiary of A Subsidiary thereof pending or, to the knowledge of Athe Company, threatened that would, individually or in writing which may interfere with the business activities of Aaggregate, except where such dispute, strike or work stoppage would not reasonably be expected to have an A a Material Adverse EffectEffect on the Company. As of the date hereof, to To the knowledge of Athe Company, none of A or the Company, any subsidiary of A Subsidiary thereof or their respective representatives or employees, employees has committed any unfair labor practices in connection with the operation of the business respective businesses of A the Company or any of its subsidiariesSubsidiary thereof, and there is no charge or complaint against A the Company or any subsidiary of A Subsidiary thereof by the National Labor Relations Board or any comparable federal state or state foreign agency pending or threatened in writingor, to the knowledge of the Company, threatened, except where such unfair labor practice, charge or complaint would not not, individually or in the aggregate, reasonably be expected to have an A a Material Adverse EffectEffect on the Company.
(ge) A The Company has delivered identified in SECTION 5.9(E) of the Company Disclosure Statement and has made available to B Parent true and correct complete copies of all plans, programs or arrangements (i) all employment agreements with officers to provide compensation by grant of, or to allow the purchase of, Company stock or stock of A and the subsidiaries of A; a predecessor employer, (ii) all severance plansto provide incentive bonuses, agreements, programs and policies of A and the subsidiaries of A with or relating to their employees; (iii) all plansto allow for, programsor provide for, agreements and the deferral of compensation other arrangements intended to satisfy the performance-based exception under SECTION 162(mthan through a plan described in Section 401(a) of the Code; and (iv) with respect to all such plans, programsprograms or arrangements, agreements and other arrangements of A and all contributions, if any, accrued or due from the subsidiaries of A with Company or relating to their respective employees which contain change in control provisions.
(h) Except any Subsidiary thereof as required by Law, no A Benefit Plan provides, or has liability with respect to, retiree medical or other retiree welfare benefits to any person.
(i) A is not a party to any agreement or arrangement that would result, separately or in the aggregate, in the payment of any "excess parachute payments" within the meaning of SECTION 280G of the Code (disregarding SECTION 280G(b)(4) Effective Time in respect of current or prior plan years will have been paid or accrued by such time in accordance with GAAP. Neither the Code).
(j) The execution and delivery of this Agreement nor the consummation of the transactions contemplated by this Agreement hereby will not (ieither alone or in conjunction with any other event, such as termination of employment) entitle (A) result in any current material payment (including, without limitation, severance, unemployment compensation, golden parachute or former otherwise) becoming due to any director or any employee of A to severance pay, unemployment compensation the Company or any similar payment; Subsidiary or Affiliate thereof from the Company or any Subsidiary or Affiliate thereof under any Company Benefit Plan or otherwise, (iiB) accelerate materially increase any benefits otherwise payable under any Company Benefit Plan or (C) result in any acceleration of the time of payment or vesting ofof any material benefits.
(f) Neither the Company nor any Subsidiary thereof is a party to any contract, plan, or increase the amount ofarrangement under which it is obligated to make or to provide, any compensation due or could become obligated to any current make or former employee of A; (iiito provide, a payment or benefit that would be nondeductible under Section 162(m) reasonably be expected to result in any "excess parachute payment" under SECTION or 280G of the Code; or (iv) result in any material liability to any present or former employee, including as a result of WARN.
(k) A has no material liability, whether absolute or contingent, including any material obligations under any A Benefit Plan, with respect to any misclassification of any person as an independent contractor rather than as an employee, or with respect to any employee leased from another employer.
(l) A has not entered into any transaction with any A Benefit Plan.
(m) In respect of all employees of A (other than A's current Chief Executive Officer and A's current Chief Financial Officer), liabilities of A and its subsidiaries in respect of any (i) severance payments and (ii) payments in respect of the cancellation of outstanding A Options in accordance with SECTION 2.05 hereof, arising in connection with the consummation of the A Merger, shall not exceed $1,300,000 in the aggregate.
(n) SECTION 4.10(n) of the A Disclosure Schedule sets forth (i) a true and correct list of all individuals who would be entitled to severance payments pursuant to an individual agreement with A or any of its subsidiaries and the amount of cash severance payments to which each such person would be entitled and (ii) with respect to any formal or informal severance program, plan or arrangement of A or any of its subsidiaries that does not involve an individual agreement between A or any of its subsidiaries and any individual, (A) a brief written description of such program, plan or arrangement and (B) the number of individuals entitled to severance benefits under such program, plan or arrangement.
(o) To the knowledge of A based on a good faith interpretation of the Stabilization Act, (i) except as set forth in SECTION 4.10(o) of the A Disclosure Schedule, no A employee's or officer's total compensation (within the meaning of the Stabilization Act) exceeded $300,000 in calendar year 2000 and (ii) with respect to any persons so identified pursuant to clause (i), A has not made or promised to make any payments or taken any action which may adversely affect the Company's ability to obtain a Federal credit instrument under SECTION 101(a)(1) of the Stabilization Act.
Appears in 2 contracts
Samples: Merger Agreement (Delta Beverage Group Inc), Merger Agreement (Whitman Corp/New/)
Employee Benefit Plans; Labor Matters. (a) With respect to each employee benefit plan, policy, commitment, program, arrangement and contract (including, without limitation, any "employee benefit plan", as defined in SECTION Section 3(3) of ERISA, sponsored, ) maintained or contributed to, to by CGI or to which there is an obligation to contribute, by Aany CGI Subsidiary, or with respect to which A CGI or any CGI Subsidiary could incur liability under Title IV of ERISA, including, but not limited to, SECTION Section 4069, 4212(c) or 4204 of ERISA (the "A BENEFIT PLANSCGI Benefit Plans"), A CGI has delivered or made available to B and the Company STC a true true, complete and correct copy of (i) such CGI Benefit Plan and the most recent summary plan description related to each A such CGI Benefit Plan and all amendments thereto for which Plan, if a summary plan description is requiredrequired therefor, (ii) each trust agreement or other funding arrangement relating to such CGI Benefit Plan, (iii) the most recent annual report (Form 5500) filed with the IRSIRS with respect to such CGI Benefit Plan, (iv) the most recent actuarial report and/or or financial statement, if any, statement relating to an A such CGI Benefit Plan, Plan and (v) the most recent determination letter, if any, letter issued by the IRS with respect to any A such CGI Benefit Plan Plan, if it is qualified under SECTION Section 401(a) of the Code, (vi) all material communications with any Governmental Authority (including the Pension Benefit Guaranty Corporation and the IRS) given or received within the last three years, and (vii) a description of all unwritten A Benefit Plans, if any.
(b) To the knowledge of A, each A Each CGI Benefit Plan has been administered in all material respects in accordance with its terms and all contributions required to be made under the terms of any of the A CGI Benefit Plans as of the date hereof of this Agreement have been timely made or have been reflected on A's the most recent consolidated balance sheetsheet filed or incorporated by reference in the CGI Reports prior to the date of this Agreement. All Except as set forth in Section 5.09(b) of the A Benefit Plans are in compliance CGI Disclosure Schedule, with all applicable requirements of Law, including ERISA and the Code, except respect to the extent that CGI Benefit Plans, no event has occurred and, to the knowledge of CGI, there exists no condition or set of circumstances in connection with which CGI or any CGI Subsidiary could be subject to any liability under the terms of such noncompliance would not have an A CGI Benefit Plans, ERISA, the Code or any other applicable Law which could reasonably be expected to have, individually or in the aggregate, a CGI Material Adverse Effect.
(c) There are no pending actions, claims or lawsuits that have been asserted regarding the A Benefit Plans directly or, to the knowledge of A, against any fiduciary of any A Benefit Plan with respect to their operation (other than routine benefit claims) which could result Except as set forth in liability.
(d) There is no A Benefit Plan that is a "multiemployer plan" (within the meaning of SECTION 3(37Section 5.09(c) of ERISA).
(e) Each A Benefit Plan which is a "group health plan" (as defined in SECTION 607(1) of ERISA) is in compliance with SECTION 601 et seq. of ERISAthe CGI Disclosure Schedule, the Health Insurance Portability and Accountability Act and any other applicable federal, state or local law.
(f) Neither A neither CGI nor any subsidiary of A CGI Subsidiary is a party to any collective bargaining or other labor union contract applicable to persons employed by A CGI or any subsidiary of A CGI Subsidiary and neither A nor any subsidiary of A is negotiating any no collective bargaining agreementsagreement is being negotiated by CGI or any CGI Subsidiary. As of the date hereofof this Agreement, there is no labor dispute, strike or work stoppage against A CGI or any subsidiary of A CGI Subsidiary pending or, to the knowledge of ACGI, threatened in writing which may interfere with the respective business activities of ACGI or any CGI Subsidiary, except where such dispute, strike or work stoppage would could not have an A reasonably be expected to have, individually or in the aggregate, a CGI Material Adverse Effect. As of the date hereofof this Agreement, to the knowledge of ACGI, none of A CGI, any CGI Subsidiary, or any subsidiary of A or their respective representatives or employees, employees has committed any unfair labor practices practice in connection with the operation of the business respective businesses of A CGI or any of its subsidiariesCGI Subsidiary, and there is no charge or complaint against A CGI or any subsidiary of A CGI Subsidiary by the National Labor Relations Board or any comparable federal or state agency Governmental Entity pending or threatened in writing, except where such unfair labor practice, charge or complaint would could not have an A reasonably be expected to have, individually or in the aggregate, a CGI Material Adverse Effect.
(gd) A CGI has delivered to B true STC true, complete and correct copies of (i) all employment agreements with officers of A CGI and the subsidiaries each CGI Subsidiary providing for annual compensation in excess of A; $25,000, (ii) all severance plans, agreements, programs and policies of A CGI and the subsidiaries of A each CGI Subsidiary with or relating to their employees; respective employees and (iii) all plans, programs, agreements and other arrangements intended to satisfy the performance-based exception under SECTION 162(m) of the Code; CGI and (iv) all plans, programs, agreements and other arrangements of A and the subsidiaries of A each CGI Subsidiary with or relating to their respective employees which contain "change in control of control" provisions.
(he) Except as provided in Section 5.09(e) of the CGI Disclosure Schedule or as otherwise required by Law, no A CGI Benefit Plan provides, or has liability with respect to, provides retiree medical or other retiree welfare life insurance benefits to any person.
(i) A is not a party to any agreement or arrangement that would result, separately or in the aggregate, in the payment of any "excess parachute payments" within the meaning of SECTION 280G of the Code (disregarding SECTION 280G(b)(4) of the Code).
(j) The consummation of the transactions contemplated by this Agreement will not (i) entitle any current or former employee of A to severance pay, unemployment compensation or any similar payment; (ii) accelerate the time of payment or vesting of, or increase the amount of, any compensation due to any current or former employee of A; (iii) reasonably be expected to result in any "excess parachute payment" under SECTION 280G of the Code; or (iv) result in any material liability to any present or former employee, including as a result of WARN.
(k) A has no material liability, whether absolute or contingent, including any material obligations under any A Benefit Plan, with respect to any misclassification of any person as an independent contractor rather than as an employee, or with respect to any employee leased from another employer.
(l) A has not entered into any transaction with any A Benefit Plan.
(m) In respect of all employees of A (other than A's current Chief Executive Officer and A's current Chief Financial Officer), liabilities of A and its subsidiaries in respect of any (i) severance payments and (ii) payments in respect of the cancellation of outstanding A Options in accordance with SECTION 2.05 hereof, arising in connection with the consummation of the A Merger, shall not exceed $1,300,000 in the aggregate.
(n) SECTION 4.10(n) of the A Disclosure Schedule sets forth (i) a true and correct list of all individuals who would be entitled to severance payments pursuant to an individual agreement with A or any of its subsidiaries and the amount of cash severance payments to which each such person would be entitled and (ii) with respect to any formal or informal severance program, plan or arrangement of A or any of its subsidiaries that does not involve an individual agreement between A or any of its subsidiaries and any individual, (A) a brief written description of such program, plan or arrangement and (B) the number of individuals entitled to severance benefits under such program, plan or arrangement.
(o) To the knowledge of A based on a good faith interpretation of the Stabilization Act, (i) except as set forth in SECTION 4.10(o) of the A Disclosure Schedule, no A employee's or officer's total compensation (within the meaning of the Stabilization Act) exceeded $300,000 in calendar year 2000 and (ii) with respect to any persons so identified pursuant to clause (i), A has not made or promised to make any payments or taken any action which may adversely affect the Company's ability to obtain a Federal credit instrument under SECTION 101(a)(1) of the Stabilization Act.
Appears in 2 contracts
Samples: Agreement and Plan of Merger and Reorganization (Cell Genesys Inc), Merger Agreement (Cell Genesys Inc)
Employee Benefit Plans; Labor Matters. (a) With Section 3.16(a) of the Disclosure Letter sets forth a true, correct and complete list of each Employee Plan and indicates which Employee Plans are PEO Plans. The Company has made available to Parent with respect to each employee benefit plan, policy, commitment, program, arrangement Employee Plan that is not a PEO Plan and contract (including, without limitation, any employee benefit plan, as defined in SECTION 3(3) of ERISA, sponsored, maintained or contributed to, or to which there is an obligation to contribute, by A, or the extent the following documents with respect to which A could incur liability under Title IV of ERISA, including, but not limited to, SECTION 4069, 4212(c) or 4204 of ERISA (the "A BENEFIT PLANS"), A has delivered or made available an Employee Plan that is a PEO Plan have been provided to B and the Company (which the Company shall use its reasonable best efforts to obtain from the sponsor of the PEO Plan) a true and correct copy of (i) the most recent summary each Employee Plan (or a description, if such plan description related to each A Benefit Plan is not written) and all amendments thereto for which and material written interpretations thereof, including a summary plan description is required, copy of (if applicable) (ii) all material Contracts including each trust agreement relating to such Benefit Plantrust, insurance or other funding arrangement, and each administrative services agreement, each as applicable, (iii) the most recent annual report each current summary plan description, summary of material modifications, and summaries of benefits and coverage (Form 5500) filed with the IRSif applicable), (iv) the three most recent actuarial report and/or financial statement, if any, relating recently filed IRS Forms 5500 and accompanying schedules and attachments thereto for each Employee Plan required to an A Benefit Planfile IRS Forms 5500, (v) the most recent determination letter, if any, issued by the IRS with respect to any A Benefit Plan qualified under SECTION 401(a) of the Coderecently prepared actuarial reports and financial statements, (vi) all material communications with any Governmental Authority policies pertaining to fiduciary liability insurance, (including vii) all discrimination and qualification tests for the three most recent plan years, (viii) all documents and correspondence relating thereto received from or provided to the Department of Labor, the Pension Benefit Guaranty Corporation and Corporation, the IRS) given IRS or received within any other Governmental Authority during the last past three years, years and (viiix) all current employee handbooks, manuals, policies and procedures (including any handbook, manual, policy or procedure provided or prepared by a description of all unwritten A Benefit Plans, if anyprofessional employer organization) that apply to any Service Provider.
(b) To Section 3.16(b) of the knowledge Disclosure Letter sets forth a true, correct and complete list of A, each A Benefit Plan has been administered in all material respects in accordance (i) Employment Agreement with its terms and all contributions required an employee or former employee with respect to be made under which the terms of Company or any of the A Benefit Plans its Subsidiaries has continuing obligations as of the date hereof have been timely made (other than at-will offer letters with no severance or have been reflected on A's most recent consolidated balance sheet. All change in control benefits or guaranteed term or payments), (ii) Consulting Agreement pursuant to which an Independent Contractor is entitled to receive (or is reasonably expected to be entitled to receive) more than $50,000 during any 12-month period and (iii) restrictive covenant Contract and indemnification Contract entered into with the Company’s executive officers, in each case as in effect as of the date of this Agreement. A Benefit Plans are copy of each such Employment Agreement, Consulting Agreement or other Contract, as the case may be, together with any amendments thereto, has been made available to Parent. Except as set forth on Section 3.16(b) of the Disclosure Letter, each current and former Employee and Independent Contractor has executed a nondisclosure and assignment-of-rights agreement for the benefit of the Company, vesting all rights in compliance work product created by such Employee or Independent Contractor during such Person’s affiliation with all the Company, and a copy of each such agreement has been made available to Parent. To the Knowledge of the Company, no current Employee or Independent Contractor is a party to, or is otherwise bound by, any Contract that adversely affects the performance of such Employee or Independent Contractor’s duties to the Company or its Subsidiaries. The Company and its Subsidiaries have no obligation or liability with respect to any Taxes (or the withholding thereof) in connection with the engagement of any Independent Contractor. The Company and its Subsidiaries have properly classified, pursuant to the Code and any other applicable requirements of Law, including ERISA all Independent Contractors used by the Company or any of its Subsidiaries, and no such Independent Contractor has a reasonable basis for a claim for benefits available to Employees only under any Employee Plan. The Company has no “leased employees” within the meaning of Section 414(n) of the Code, except to the extent that any such noncompliance would not have an A Material Adverse Effect.. Table of Contents
(c) There are no pending actionsThe Company has made available to Parent a true, claims correct and complete list of all former Employees whose employment has been terminated within 90 days preceding the date hereof, or lawsuits that whose work hours have been asserted regarding reduced by fifty percent (50%) or more within six months preceding the A Benefit Plans directly ordate hereof, including for each such Person: name, site of employment, job title, date of hire, date of employment loss, termination or layoff, if applicable, and amount of reduction in hours for each calendar month during the six-month period preceding the anticipated Closing Date, if applicable. To the Company’s Knowledge, no Employee or Independent Contractor intends to terminate his or her employment or services with the knowledge of A, against any fiduciary of any A Benefit Plan with respect to their operation (other than routine benefit claims) which could result in liabilityCompany or its Subsidiaries.
(d) There The Company has made available to Parent a true, correct and complete list that sets forth, as of the date hereof: (i) each current Employee, including each such Person’s name, employer, job title, hire date, work location, current base salary or wage or commission rate, most recent annual bonus received and current annual bonus or incentive opportunity (including performance goals and target and maximum amounts), all other wage or compensation arrangements, fringe benefits (other than those available to all Employees), whether part-time or full-time, status as exempt or non-exempt under the Fair Labor Standards Act, immigration status, whether such person has entered in an Employment Agreement, and whether such individual is no A Benefit Plan that is in active employment or on leave, and if on leave, the nature of such leave and the date of expected return; and (ii) each current Independent Contractor, including each such Person’s name, location, description of services, consulting or contracting term, consulting or contracting fee and an indication of whether such Person has entered into a "multiemployer plan" (within Contract with the meaning Company or any of SECTION 3(37its Subsidiaries. Except as set forth on Section 3.16(d) of ERISA)the Disclosure Letter, the employment of each Employee and the services of each Independent Contractor is terminable at will without compensation or other penalty. The engagement of each Employee and Independent Contractor is subject to the Laws of the United States only. The Company and its Subsidiaries have a completed Form I-9 (Employment Eligibility Verification) for each Employee, and to the extent required by applicable Law, each such Form I-9 has since been updated.
(e) Each A Benefit No Employee Plan which is, and neither the Company nor any of its ERISA Affiliates has ever sponsored, maintained, administered or contributed to (or has had any obligation to contribute to) or has or is reasonably expected to have any direct or indirect liability with respect to: (i) a "group health “defined benefit plan" ” (as defined in SECTION 607(1Section 3(35) of ERISA) is in compliance with SECTION 601 et seq. of ERISA, the Health Insurance Portability and Accountability Act and any other applicable federal, state or local law.
(f) Neither A nor any subsidiary of A is a party to any collective bargaining or other labor union contract applicable to persons employed by A or any subsidiary of A and neither A nor any subsidiary of A is negotiating any collective bargaining agreements. As of the date hereof, there is no labor dispute, strike or work stoppage against A or any subsidiary of A pending or, to the knowledge of A, threatened in writing which may interfere with the business activities of A, except where such dispute, strike or work stoppage would not have an A Material Adverse Effect. As of the date hereof, to the knowledge of A, none of A or any subsidiary of A or their respective representatives or employees, has committed any unfair labor practices in connection with the operation of the business of A or any of its subsidiaries, and there is no charge or complaint against A or any subsidiary of A by the National Labor Relations Board or any comparable federal or state agency pending or threatened in writing, except where such unfair labor practice, charge or complaint would not have an A Material Adverse Effect.
(g) A has delivered to B true and correct copies of (i) all employment agreements with officers of A and the subsidiaries of A); (ii) all severance plans, agreements, programs a “multiemployer plan” (as defined in Sections 4001(a)(3) and policies 3(37)(A) of A and the subsidiaries of A with or relating to their employeesERISA); (iii) all plans, programs, agreements and other arrangements intended a pension plan subject to satisfy Section 302 or Title IV of ERISA or Section 412 or 4971 of the performance-based exception under SECTION 162(mCode; (iv) a multiple employer welfare arrangement (as defined in Section 3(40) of ERISA or applicable state Law); (v) “voluntary employees’ beneficiary association” (as defined in Section 501(c)(9) of the Code; and (iv) all plans, programs, agreements and other arrangements of A and the subsidiaries of A with or relating to their respective employees which contain change in control provisions.
(h) Except as required by Law, no A Benefit Plan provides, or has liability with respect to, retiree medical or other retiree funded arrangement for the provision of welfare benefits to any person.
benefits; or (ivi) A is not a party to any agreement or arrangement that would result, separately or “multiple employer plan” (as defined in the aggregate, in the payment of any "excess parachute payments" within the meaning of SECTION 280G of the Code (disregarding SECTION 280G(b)(4Section 413(c) of the Code).
(j) The consummation of the transactions contemplated by this Agreement will not (i) entitle any current or former employee of A to severance pay, unemployment compensation or any similar payment; (ii) accelerate the time of payment or vesting of, or increase the amount of, any compensation due to any current or former employee of A; (iii) reasonably be expected to result in any "excess parachute payment" under SECTION 280G of the Code; or (iv) result in any material liability to any present or former employee, including as a result of WARN.
(k) A has no material liability, whether absolute or contingent, including any material obligations under any A Benefit Plan, with respect to any misclassification of any person as an independent contractor rather than as an employee, or with respect to any employee leased from another employer.
(l) A has not entered into any transaction with any A Benefit Plan.
(m) In respect of all employees of A (other than A's current Chief Executive Officer and A's current Chief Financial Officer), liabilities of A and its subsidiaries in respect of any (i) severance payments and (ii) payments in respect of the cancellation of outstanding A Options in accordance with SECTION 2.05 hereof, arising in connection with the consummation of the A Merger, shall not exceed $1,300,000 in the aggregate.
(n) SECTION 4.10(na multiple employer plan sponsored or maintained by a PEO which is listed on Section 3.16(e) of the A Disclosure Schedule sets forth (i) a true and correct list of all individuals who would be entitled to severance payments pursuant to an individual agreement with A or any of its subsidiaries and the amount of cash severance payments to which each such person would be entitled and (ii) with respect to any formal or informal severance program, plan or arrangement of A or any of its subsidiaries that does not involve an individual agreement between A or any of its subsidiaries and any individual, (A) a brief written description of such program, plan or arrangement and (B) the number of individuals entitled to severance benefits under such program, plan or arrangementLetter).
(o) To the knowledge of A based on a good faith interpretation of the Stabilization Act, (i) except as set forth in SECTION 4.10(o) of the A Disclosure Schedule, no A employee's or officer's total compensation (within the meaning of the Stabilization Act) exceeded $300,000 in calendar year 2000 and (ii) with respect to any persons so identified pursuant to clause (i), A has not made or promised to make any payments or taken any action which may adversely affect the Company's ability to obtain a Federal credit instrument under SECTION 101(a)(1) of the Stabilization Act.
Appears in 2 contracts
Samples: Merger Agreement (Timber Pharmaceuticals, Inc.), Merger Agreement (Timber Pharmaceuticals, Inc.)
Employee Benefit Plans; Labor Matters. (a) With respect to each employee benefit plan, policy, commitment, program, arrangement and contract (including, without limitation, any employee benefit plan"Employee -------- Benefit Plan", as defined in SECTION Section 3(3) of the Employee Retirement Income ------------ Security Act of 1974, as amended ("ERISA, sponsored")), maintained or contributed to, or to which there is an obligation to contribute, by A----- the Company, or with respect to which A the Company could incur liability under Title IV of ERISA, including, but not limited to, SECTION Section 4069, 4212(c4201(c) or 4204 of ERISA (the "A BENEFIT PLANSCompany Benefit Plans"), A the ------------- --------------------- Company has delivered or made available to B and the Company Buyers a true and correct copy of (i) the most recent summary plan description related to each A Benefit Plan and all amendments thereto for which a summary plan description is required, (ii) each trust agreement relating to such Benefit Plan, (iii) the most recent annual report (Form 5500) filed with the Internal Revenue Service (the "IRS"), (ii) such Company Benefit Plan, (iii) each trust --- agreement relating to such Company Benefit Plan, (iv) the most recent summary plan described for each Company Benefit Plan for which a summary plan described is required, (v) the most recent actuarial report and/or financial statementor valuation relating to a Company Benefit Plan subject to Title IV of ERISA, if any, relating to an A Benefit Plan, and (vvi) the most recent determination letter, if any, issued by the IRS with respect to any A Company Benefit Plan qualified under SECTION 401(aSection 401 (a) ------- of the Code, (vi) all material communications with any Governmental Authority (including the Pension Benefit Guaranty Corporation and the IRS) given or received within the last three years, and (vii) a description of all unwritten A Benefit Plans, if any.
(b) To With respect to the Company Benefit Plans, no event has occurred and, to the knowledge of Athe Stockholders, each A Benefit Plan has been administered there exists no condition or set of circumstances, in all material respects in accordance connection with its terms and all contributions required which the Stockholders could be subject to be made any liability under the terms of such Company Benefit Plans, ERISA, the Code or any of the A Benefit Plans other applicable law except as of the date hereof have been timely made or have been reflected on A's most recent consolidated balance sheet. All of the A Benefit Plans are in compliance with all applicable requirements of Law, including ERISA and the Code, except to the extent that any such noncompliance would not have an A a Company Material Adverse Effect. The Company has no actual or contingent liability under Title IV of ERISA (other than the payment of premiums to the Pension Benefit Guaranty Corporation) except as would not have a Company Material Adverse Effect.
(c) There are no pending actions, claims or lawsuits that have been asserted regarding the A Benefit Plans directly or, The Company has made available to the knowledge Buyers (i) copies of A, against any fiduciary of any A Benefit Plan all employment agreements with respect to their operation (other than routine benefit claims) which could result in liability.
(d) There is no A Benefit Plan that is a "multiemployer plan" (within the meaning of SECTION 3(37) of ERISA).
(e) Each A Benefit Plan which is a "group health plan" (as defined in SECTION 607(1) of ERISA) is in compliance with SECTION 601 et seq. of ERISA, the Health Insurance Portability and Accountability Act and any other applicable federal, state officers or local law.
(f) Neither A nor any subsidiary of A is a party to any collective bargaining or other labor union contract applicable to persons employed by A or any subsidiary of A and neither A nor any subsidiary of A is negotiating any collective bargaining agreements. As key employees of the date hereof, there is no labor dispute, strike or work stoppage against A or any subsidiary of A pending or, to the knowledge of A, threatened in writing which may interfere with the business activities of A, except where such dispute, strike or work stoppage would not have an A Material Adverse Effect. As of the date hereof, to the knowledge of A, none of A or any subsidiary of A or their respective representatives or employees, has committed any unfair labor practices in connection with the operation of the business of A Company or any of its subsidiaries, and there is no charge or complaint against A or any subsidiary of A by the National Labor Relations Board or any comparable federal or state agency pending or threatened in writing, except where such unfair labor practice, charge or complaint would not have an A Material Adverse Effect.
(g) A has delivered to B true and correct copies of (i) all employment agreements with officers of A and the subsidiaries of A; (ii) copies of all severance plans, agreements, programs and policies of A the Company; and the subsidiaries of A with or relating to their employees; (iii) all plans, programs, agreements and other arrangements intended to satisfy the performance-based exception under SECTION 162(m) copies of the Code; and (iv) all plans, programs, agreements and other arrangements of A and the subsidiaries of A with or relating to their respective employees Company which contain change in control provisions.
(hd) Except as set forth in Schedule 2.11(d), neither the ---------------- execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (i) result in any material payment (including, without limitation, severance, unemployment compensation, "golden parachute" or otherwise) becoming due to any director, officer or employee of the Company under any Company Benefit Plan or otherwise; (ii) materially increase any benefits otherwise payable under any Company Benefit Plan or (iii) result in any acceleration of the time of payment or vesting of any material benefits.
(e) Except as set forth in Schedule 2.11(e) or as required ---------------- by Lawlaw, no A Company Benefit Plan provides, or has liability with respect to, provides retiree medical or other retiree welfare life insurance benefits to any person.
(f) The Company (i) A is in material compliance with all applicable federal, state and local laws, rules and regulations (domestic and foreign) respecting employment, employment practices, labor, terms and conditions of employment and wages and hours, in each case, with respect to employees; (ii) have withheld all amounts required by law or by agreement to be withheld from the wages, salaries and other payments to employees; (iii) are not a party liable for any arrears of wages or any taxes or any penalty for failure to comply with any of the foregoing; and (iv) are not liable for any payment to any agreement trust or arrangement that would resultother fund or to any governmental or administrative authority, separately with respect to unemployment compensation benefits, social security or in the aggregate, in the payment of any "excess parachute payments" within the meaning of SECTION 280G of the Code (disregarding SECTION 280G(b)(4) of the Code)other benefits for employees.
(jg) The consummation No employees are currently represented by any labor union for purposes of collective bargaining and to the knowledge of the transactions contemplated Company, no activities the purpose of which is to achieve such representation of all or some of such employees are threatened or ongoing. No work stoppage or labor strike against the Company or Stockholders by this Agreement will employees are pending or to the knowledge of the Company threatened. The Company is not (i) entitle involved in or threatened with any current labor dispute, grievance, or former employee litigation relating to labor matters involving any employees, including, without limitation, violation of A to severance payany federal, unemployment compensation state or any similar paymentlocal labor, safety or employment laws (domestic or foreign), charges of unfair labor practices or discrimination complaints; (ii) accelerate the time of payment or vesting of, or increase the amount of, any compensation due to any current or former employee of A; (iii) reasonably be expected to result engaged in any "excess parachute payment" under SECTION 280G of the Code; or (iv) result in any material liability to any present or former employee, including as a result of WARN.
(k) A has no material liability, whether absolute or contingent, including any material obligations under any A Benefit Plan, with respect to any misclassification of any person as an independent contractor rather than as an employee, or with respect to any employee leased from another employer.
(l) A has not entered into any transaction with any A Benefit Plan.
(m) In respect of all employees of A (other than A's current Chief Executive Officer and A's current Chief Financial Officer), liabilities of A and its subsidiaries in respect of any (i) severance payments and (ii) payments in respect of the cancellation of outstanding A Options in accordance with SECTION 2.05 hereof, arising in connection with the consummation of the A Merger, shall not exceed $1,300,000 in the aggregate.
(n) SECTION 4.10(n) of the A Disclosure Schedule sets forth (i) a true and correct list of all individuals who would be entitled to severance payments pursuant to an individual agreement with A or any of its subsidiaries and the amount of cash severance payments to which each such person would be entitled and (ii) with respect to any formal or informal severance program, plan or arrangement of A or any of its subsidiaries that does not involve an individual agreement between A or any of its subsidiaries and any individual, (A) a brief written description of such program, plan or arrangement and (B) the number of individuals entitled to severance benefits under such program, plan or arrangement.
(o) To the knowledge of A based on a good faith interpretation of the Stabilization Act, (i) except as set forth in SECTION 4.10(o) of the A Disclosure Schedule, no A employee's or officer's total compensation (unfair labor practices within the meaning of the Stabilization National Labor Relations Act or the Railway Labor Act; or (iii) exceeded $300,000 presently, nor has it been in calendar year 2000 and (ii) the past a party to, or bound by, any collective bargaining agreement or union contract with respect to employees and no such agreement or contract is currently being negotiated by Stockholders or any persons so identified pursuant to clause (i), A has not made or promised to make any payments or taken any action which may adversely affect the Company's ability to obtain a Federal credit instrument under SECTION 101(a)(1) of the Stabilization Acttheir affiliates.
Appears in 2 contracts
Samples: Merger Agreement (Applied Digital Solutions Inc), Merger Agreement (Applied Digital Solutions Inc)
Employee Benefit Plans; Labor Matters. (a) With respect to each employee benefit plan, policy, commitment, program, arrangement and contract (including, without limitation, any "employee benefit plan", as defined in SECTION Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA")), sponsored, maintained or contributed to, or to which there is an obligation to contribute, by AB, or with respect to which A B could incur liability under Title IV of ERISA, including, but not limited to, SECTION Section 4069, 4212(c) or 4204 of ERISA (the "A BENEFIT PLANSB Benefit Plans"), A B has delivered or made available to B A and the Company a true and correct copy of (i) such B Benefit Plan and all amendments thereto and the most recent summary plan description related to each A B Benefit Plan and all amendments thereto for which a summary plan description is required, (ii) each trust agreement relating to such Benefit Plan, (iii) the most recent annual report (Form 5500) filed with the Internal Revenue Service (the "IRS"), (iv) the most recent actuarial report and/or financial statement, if any, relating to an A any B Benefit Plan, (v) the most recent determination letter, if any, issued by the IRS with respect to any A B Benefit Plan qualified under SECTION Section 401(a) of the Code, (vi) all material communications with any Governmental Authority (including the Pension Benefit Guaranty Corporation and the IRS) given or received within the last three years, and (vii) a description of all unwritten A B Benefit Plans, if any.
(b) To the knowledge of AB, each A B Benefit Plan has been administered in all material respects in accordance with its terms and all contributions required to be made under the terms of any of the A B Benefit Plans as of the date hereof have been timely made or have been reflected on A's the most recent consolidated balance sheetsheet filed or incorporated by reference in the B SEC Reports prior to the date hereof. All of the A B Benefit Plans are in compliance with all applicable requirements of Law, including ERISA and the Code, except to the extent that any such noncompliance non-compliance would not have an A a B Material Adverse Effect.
(c) There are no pending actions, claims or lawsuits that have been asserted regarding the A B Benefit Plans directly or, to the knowledge of AB, against any fiduciary of any A B Benefit Plan with respect to their operation (other than routine benefit claims) which could result in liability.
(d) There is no A B Benefit Plan that is a "multiemployer plan" (within the meaning of SECTION Section 3(37) of ERISA).
(e) Each A B Benefit Plan which is a "group health plan" (as defined in SECTION Section 607(1) of ERISA) is in compliance with SECTION Section 601 et seq. of ERISA, the Health Insurance Portability and Accountability Act and any other applicable federal, state or local lawLaw.
(f) Neither A nor any subsidiary of A B is not a party to any collective bargaining or other labor union contract applicable to persons employed by A or any subsidiary of A B and neither A nor any subsidiary of A is not negotiating any collective bargaining agreements. As of the date hereof, there is no labor dispute, strike or work stoppage against A or any subsidiary of A B pending or, to the knowledge of AB, threatened in writing which may interfere with the business activities of AB, except where such dispute, strike or work stoppage would not have an A a B Material Adverse Effect. As of the date hereof, to the knowledge of AB, none of A B or any subsidiary of A or their respective its representatives or employees, has committed any unfair labor practices in connection with the operation of the business of A or any of its subsidiariesB, and there is no charge or complaint against A or any subsidiary of A B by the National Labor Relations Board or any comparable federal or state agency pending or threatened in writing, except where such unfair labor practice, charge or complaint would not have an A a B Material Adverse Effect.
(g) A B has delivered to B A true and correct copies of (i) all employment agreements with officers of A and the subsidiaries of AB; (ii) all severance plans, agreements, programs and policies of A and the subsidiaries of A B with or relating to their its employees; (iii) all plans, programs, agreements and other arrangements intended to satisfy the performance-based exception under SECTION Section 162(m) of the Code; and (iv) all plans, programs, agreements and other arrangements of A and the subsidiaries of A B with or relating to their respective its employees which contain change in control provisions.
(h) Except as required by Law, no A B Benefit Plan provides, or has liability with respect to, retiree medical or other retiree welfare benefits to any person.
(i) A B is not a party to any agreement or arrangement that would result, separately or in the aggregate, in the payment of any "excess parachute payments" within the meaning of SECTION Section 280G of the Code (disregarding SECTION Section 280G(b)(4) of the Code).
(j) The consummation of the transactions contemplated by this Agreement will not (i) entitle any current or former employee of A B to severance pay, unemployment compensation or any similar payment; (ii) accelerate the time of payment or vesting of, or increase the amount of, any compensation due to any current or former employee of AB; (iii) reasonably be expected to result in any "excess parachute payment" under SECTION Section 280G of the Code; or (iv) result in any material liability to any present or former employee, including as a result of WARN.
(k) A B has no material liability, whether absolute or contingent, including any material obligations under any A B Benefit Plan, with respect to any misclassification of any person as an independent contractor rather than as an employee, or with respect to any employee leased from another employer.
(l) A B has not entered into any transaction with any A B Benefit Plan.
(m) In respect of all employees of A (other than A's current Chief Executive Officer and A's current Chief Financial Officer), liabilities of A and its subsidiaries in respect of any (i) severance payments and (ii) payments in respect of the cancellation of outstanding A Options in accordance with SECTION 2.05 hereof, arising in connection with the consummation of the A Merger, shall not exceed $1,300,000 in the aggregate.
(n) SECTION 4.10(nSection 3.10(m) of the A B Disclosure Schedule sets forth (i) a true and correct list of all individuals who would be entitled to severance payments pursuant to an individual agreement with A or any of its subsidiaries B and the amount of cash severance payments to which each such person would be entitled thereunder and (ii) with respect to any formal or informal severance program, plan or arrangement of A or any of its subsidiaries B that does not involve an individual agreement between A or any of its subsidiaries B and any individual, (A) a brief written description of such program, plan or arrangement and (B) the number of individuals entitled to severance benefits under such program, plan or arrangement.
(on) To the knowledge of A based on a good faith interpretation Section 3.10(n) of the Stabilization ActB Disclosure Schedule sets forth a true and correct list of all persons who hold B Options, and sets forth, for each such person, (i) except the number of shares of B Common Stock underlying the B Options held by such person as set forth in SECTION 4.10(o) of the A Disclosure Scheduledate hereof, no A employee's or officer's total compensation (within ii) the meaning of exercise price per share with respect to each such B Option, (iii) the Stabilization Act) exceeded $300,000 in calendar year 2000 expiration date for such B Option, and (iiiv) the Cash-Out Amount (as defined below) with respect to any persons so identified pursuant to clause the B Options (i), A has not made or promised to make any payments or taken any action which may adversely affect the Company's ability to obtain a Federal credit instrument under SECTION 101(a)(1) of the Stabilization Act.whether
Appears in 1 contract
Employee Benefit Plans; Labor Matters. (a) With respect to each employee benefit plan, policy, commitment, program, arrangement and contract (including, without limitation, any "employee benefit plan", as defined in SECTION Section 3(3) of ERISA, sponsored, ) maintained or contributed to, to by CGI or to which there is an obligation to contribute, by Aany CGI Subsidiary, or with respect to which A CGI or any CGI Subsidiary could incur liability under Title IV of ERISA, including, but not limited to, SECTION Section 4069, 4212(c) or 4204 of ERISA (the "A BENEFIT PLANSCGI Benefit Plans"), A CGI has delivered or made available to B and the Company STC a true true, complete and correct copy of (i) such CGI Benefit Plan and the most recent summary plan description related to each A such CGI Benefit Plan and all amendments thereto for which Plan, if a summary plan description is requiredrequired therefor, (ii) each 41 35 trust agreement or other funding arrangement relating to such CGI Benefit Plan, (iii) the most recent annual report (Form 5500) filed with the IRSIRS with respect to such CGI Benefit Plan, (iv) the most recent actuarial report and/or or financial statement, if any, statement relating to an A such CGI Benefit Plan, Plan and (v) the most recent determination letter, if any, letter issued by the IRS with respect to any A such CGI Benefit Plan Plan, if it is qualified under SECTION Section 401(a) of the Code, (vi) all material communications with any Governmental Authority (including the Pension Benefit Guaranty Corporation and the IRS) given or received within the last three years, and (vii) a description of all unwritten A Benefit Plans, if any.
(b) To the knowledge of A, each A Each CGI Benefit Plan has been administered in all material respects in accordance with its terms and all contributions required to be made under the terms of any of the A CGI Benefit Plans as of the date hereof of this Agreement have been timely made or have been reflected on A's the most recent consolidated balance sheetsheet filed or incorporated by reference in the CGI Reports prior to the date of this Agreement. All Except as set forth in Section 5.09(b) of the A Benefit Plans are in compliance CGI Disclosure Schedule, with all applicable requirements of Law, including ERISA and the Code, except respect to the extent that CGI Benefit Plans, no event has occurred and, to the knowledge of CGI, there exists no condition or set of circumstances in connection with which CGI or any CGI Subsidiary could be subject to any liability under the terms of such noncompliance would not have an A CGI Benefit Plans, ERISA, the Code or any other applicable Law which could reasonably be expected to have, individually or in the aggregate, a CGI Material Adverse Effect.
(c) There are no pending actions, claims or lawsuits that have been asserted regarding the A Benefit Plans directly or, to the knowledge of A, against any fiduciary of any A Benefit Plan with respect to their operation (other than routine benefit claims) which could result Except as set forth in liability.
(d) There is no A Benefit Plan that is a "multiemployer plan" (within the meaning of SECTION 3(37Section 5.09(c) of ERISA).
(e) Each A Benefit Plan which is a "group health plan" (as defined in SECTION 607(1) of ERISA) is in compliance with SECTION 601 et seq. of ERISAthe CGI Disclosure Schedule, the Health Insurance Portability and Accountability Act and any other applicable federal, state or local law.
(f) Neither A neither CGI nor any subsidiary of A CGI Subsidiary is a party to any collective bargaining or other labor union contract applicable to persons employed by A CGI or any subsidiary of A CGI Subsidiary and neither A nor any subsidiary of A is negotiating any no collective bargaining agreementsagreement is being negotiated by CGI or any CGI Subsidiary. As of the date hereofof this Agreement, there is no labor dispute, strike or work stoppage against A CGI or any subsidiary of A CGI Subsidiary pending or, to the knowledge of ACGI, threatened in writing which may interfere with the respective business activities of ACGI or any CGI Subsidiary, except where such dispute, strike or work stoppage would could not have an A reasonably be expected to have, individually or in the aggregate, a CGI Material Adverse Effect. As of the date hereofof this Agreement, to the knowledge of ACGI, none of A CGI, any CGI Subsidiary, or any subsidiary of A or their respective representatives or employees, employees has committed any unfair labor practices practice in connection with the operation of the business respective businesses of A CGI or any of its subsidiariesCGI Subsidiary, and there is no charge or complaint against A CGI or any subsidiary of A CGI Subsidiary by the National Labor Relations Board or any comparable federal or state agency Governmental Entity pending or threatened in writing, except where such unfair labor practice, charge or complaint would could not have an A reasonably be expected to have, individually or in the aggregate, a CGI Material Adverse Effect.
(ge) A has delivered to B true and correct copies of (i) all employment agreements with officers of A and the subsidiaries of A; (ii) all severance plans, agreements, programs and policies of A and the subsidiaries of A with or relating to their employees; (iii) all plans, programs, agreements and other arrangements intended to satisfy the performance-based exception under SECTION 162(mExcept as provided in Section 5.09(e) of the Code; and (iv) all plans, programs, agreements and other arrangements of A and the subsidiaries of A with CGI Disclosure Schedule or relating to their respective employees which contain change in control provisions.
(h) Except as otherwise required by Law, no A CGI Benefit Plan provides, or has liability with respect to, provides retiree medical or other retiree welfare life insurance benefits to any person.
(i) A is not a party to any agreement or arrangement that would result, separately or in the aggregate, in the payment of any "excess parachute payments" within the meaning of SECTION 280G of the Code (disregarding SECTION 280G(b)(4) of the Code).
(j) The consummation of the transactions contemplated by this Agreement will not (i) entitle any current or former employee of A to severance pay, unemployment compensation or any similar payment; (ii) accelerate the time of payment or vesting of, or increase the amount of, any compensation due to any current or former employee of A; (iii) reasonably be expected to result in any "excess parachute payment" under SECTION 280G of the Code; or (iv) result in any material liability to any present or former employee, including as a result of WARN.
(k) A has no material liability, whether absolute or contingent, including any material obligations under any A Benefit Plan, with respect to any misclassification of any person as an independent contractor rather than as an employee, or with respect to any employee leased from another employer.
(l) A has not entered into any transaction with any A Benefit Plan.
(m) In respect of all employees of A (other than A's current Chief Executive Officer and A's current Chief Financial Officer), liabilities of A and its subsidiaries in respect of any (i) severance payments and (ii) payments in respect of the cancellation of outstanding A Options in accordance with SECTION 2.05 hereof, arising in connection with the consummation of the A Merger, shall not exceed $1,300,000 in the aggregate.
(n) SECTION 4.10(n) of the A Disclosure Schedule sets forth (i) a true and correct list of all individuals who would be entitled to severance payments pursuant to an individual agreement with A or any of its subsidiaries and the amount of cash severance payments to which each such person would be entitled and (ii) with respect to any formal or informal severance program, plan or arrangement of A or any of its subsidiaries that does not involve an individual agreement between A or any of its subsidiaries and any individual, (A) a brief written description of such program, plan or arrangement and (B) the number of individuals entitled to severance benefits under such program, plan or arrangement.
(o) To the knowledge of A based on a good faith interpretation of the Stabilization Act, (i) except as set forth in SECTION 4.10(o) of the A Disclosure Schedule, no A employee's or officer's total compensation (within the meaning of the Stabilization Act) exceeded $300,000 in calendar year 2000 and (ii) with respect to any persons so identified pursuant to clause (i), A has not made or promised to make any payments or taken any action which may adversely affect the Company's ability to obtain a Federal credit instrument under SECTION 101(a)(1) of the Stabilization Act.
Appears in 1 contract
Employee Benefit Plans; Labor Matters. (a) With respect to each employee benefit plan, policy, commitment, program, arrangement and contract (including, without limitation, any "employee benefit plan", as defined in SECTION Section 3(3) of ERISA, sponsored, ) maintained or contributed to, to by CGI or to which there is an obligation to contribute, by Aany CGI Subsidiary, or with respect to which A CGI or any CGI Subsidiary could incur liability under Title IV of ERISA, including, but not limited to, SECTION Section 4069, 4212(c) or 4204 of ERISA (the "A BENEFIT PLANSCGI Benefit Plans"), A CGI has delivered or made available to B and the Company STC a true true, complete and correct copy of (i) such CGI Benefit Plan and the most recent summary plan description related to each A such CGI Benefit Plan and all amendments thereto for which Plan, if a summary plan description is requiredrequired therefor, (ii) each trust agreement or other funding arrangement relating to such CGI Benefit Plan, (iii) the most recent annual report (Form 5500) filed with the IRSIRS with respect to such CGI Benefit Plan, (iv) the most recent actuarial report and/or or financial statement, if any, statement relating to an A such CGI Benefit Plan, Plan and (v) the most recent determination letter, if any, letter issued by the IRS with respect to any A such CGI Benefit Plan Plan, if it is qualified under SECTION Section 401(a) of the Code, (vi) all material communications with any Governmental Authority (including the Pension Benefit Guaranty Corporation and the IRS) given or received within the last three years, and (vii) a description of all unwritten A Benefit Plans, if any.
(b) To the knowledge of A, each A Each CGI Benefit Plan has been administered in all material respects in accordance with its terms and all contributions required to be made under the terms of any of the A CGI Benefit Plans as of the date hereof of this Agreement have been timely made or have been reflected on A's the most recent consolidated balance sheetsheet filed or incorporated by reference in the CGI Reports prior to the date of this Agreement. All Except as set forth in Section 5.09(b) of the A Benefit Plans are in compliance CGI Disclosure Schedule, with all applicable requirements of Law, including ERISA and the Code, except respect to the extent that CGI Benefit Plans, no event has occurred and, to the knowledge of CGI, there exists no condition or set of circumstances in connection with which CGI or any CGI Subsidiary could be subject to any liability under the terms of such noncompliance would not have an A CGI Benefit Plans, ERISA, the Code or any other applicable Law which could reasonably be expected to have, individually or in the aggregate, a CGI Material Adverse Effect.
(c) There are no pending actions, claims or lawsuits that have been asserted regarding the A Benefit Plans directly or, to the knowledge of A, against any fiduciary of any A Benefit Plan with respect to their operation (other than routine benefit claims) which could result Except as set forth in liability.
(d) There is no A Benefit Plan that is a "multiemployer plan" (within the meaning of SECTION 3(37Section 5.09(c) of ERISA).
(e) Each A Benefit Plan which is a "group health plan" (as defined in SECTION 607(1) of ERISA) is in compliance with SECTION 601 et seq. of ERISAthe CGI Disclosure Schedule, the Health Insurance Portability and Accountability Act and any other applicable federal, state or local law.
(f) Neither A neither CGI nor any subsidiary of A CGI Subsidiary is a party to any collective bargaining or other labor union contract applicable to persons employed by A or any subsidiary of A and neither A nor any subsidiary of A is negotiating any collective bargaining agreements. As of the date hereof, there is no labor dispute, strike or work stoppage against A or any subsidiary of A pending or, to the knowledge of A, threatened in writing which may interfere with the business activities of A, except where such dispute, strike or work stoppage would not have an A Material Adverse Effect. As of the date hereof, to the knowledge of A, none of A or any subsidiary of A or their respective representatives or employees, has committed any unfair labor practices in connection with the operation of the business of A or any of its subsidiaries, and there is no charge or complaint against A or any subsidiary of A by the National Labor Relations Board or any comparable federal or state agency pending or threatened in writing, except where such unfair labor practice, charge or complaint would not have an A Material Adverse Effect.21
(gd) A CGI has delivered to B true STC true, complete and correct copies of (i) all employment agreements with officers of A CGI and the subsidiaries each CGI Subsidiary providing for annual compensation in excess of A; $25,000, (iib) all severance plans, agreements, programs and policies of A CGI and the subsidiaries of A each CGI Subsidiary with or relating to their employees; respective employees and (iii) all plans, programs, agreements and other arrangements intended to satisfy the performance-based exception under SECTION 162(m) of the Code; CGI and (iv) all plans, programs, agreements and other arrangements of A and the subsidiaries of A each CGI Subsidiary with or relating to their respective employees which contain "change in control of control" provisions.
(he) Except as provided in Section 5.09(e) of the CGI Disclosure Schedule or as otherwise required by Law, no A CGI Benefit Plan provides, or has liability with respect to, provides retiree medical or other retiree welfare life insurance benefits to any person.
(i) A is not a party to any agreement or arrangement that would result, separately or in the aggregate, in the payment of any "excess parachute payments" within the meaning of SECTION 280G of the Code (disregarding SECTION 280G(b)(4) of the Code).
(j) The consummation of the transactions contemplated by this Agreement will not (i) entitle any current or former employee of A to severance pay, unemployment compensation or any similar payment; (ii) accelerate the time of payment or vesting of, or increase the amount of, any compensation due to any current or former employee of A; (iii) reasonably be expected to result in any "excess parachute payment" under SECTION 280G of the Code; or (iv) result in any material liability to any present or former employee, including as a result of WARN.
(k) A has no material liability, whether absolute or contingent, including any material obligations under any A Benefit Plan, with respect to any misclassification of any person as an independent contractor rather than as an employee, or with respect to any employee leased from another employer.
(l) A has not entered into any transaction with any A Benefit Plan.
(m) In respect of all employees of A (other than A's current Chief Executive Officer and A's current Chief Financial Officer), liabilities of A and its subsidiaries in respect of any (i) severance payments and (ii) payments in respect of the cancellation of outstanding A Options in accordance with SECTION 2.05 hereof, arising in connection with the consummation of the A Merger, shall not exceed $1,300,000 in the aggregate.
(n) SECTION 4.10(n) of the A Disclosure Schedule sets forth (i) a true and correct list of all individuals who would be entitled to severance payments pursuant to an individual agreement with A or any of its subsidiaries and the amount of cash severance payments to which each such person would be entitled and (ii) with respect to any formal or informal severance program, plan or arrangement of A or any of its subsidiaries that does not involve an individual agreement between A or any of its subsidiaries and any individual, (A) a brief written description of such program, plan or arrangement and (B) the number of individuals entitled to severance benefits under such program, plan or arrangement.
(o) To the knowledge of A based on a good faith interpretation of the Stabilization Act, (i) except as set forth in SECTION 4.10(o) of the A Disclosure Schedule, no A employee's or officer's total compensation (within the meaning of the Stabilization Act) exceeded $300,000 in calendar year 2000 and (ii) with respect to any persons so identified pursuant to clause (i), A has not made or promised to make any payments or taken any action which may adversely affect the Company's ability to obtain a Federal credit instrument under SECTION 101(a)(1) of the Stabilization Act.
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Cell Genesys Inc)
Employee Benefit Plans; Labor Matters. (a) With respect to each employee benefit plan, policy, commitment, program, arrangement and contract (including, without limitation, any "employee benefit plan", as defined in SECTION Section 3(3) of ERISA, sponsored, ) maintained or contributed to, to by CGI or to which there is an obligation to contribute, by Aany CGI Subsidiary, or with respect to which A CGI or any CGI Subsidiary could incur liability under Title IV of ERISA, including, but not limited to, SECTION Section 4069, 4212(c) or 4204 of ERISA (the "A BENEFIT PLANSCGI Benefit Plans"), A CGI has delivered or made available to B and the Company STC a true true, complete and correct copy of (i) such CGI Benefit Plan and the most recent summary plan description related to each A such CGI Benefit Plan and all amendments thereto for which Plan, if a summary plan description is requiredrequired therefor, (ii) each trust agreement or other funding arrangement relating to such CGI Benefit Plan, (iii) the most recent annual report (Form 5500) filed with the IRSIRS with respect to such CGI Benefit Plan, (iv) the most recent actuarial report and/or or financial statement, if any, statement relating to an A such CGI Benefit Plan, Plan and (v) the most recent determination letter, if any, letter issued by the IRS with respect to any A such CGI Benefit Plan Plan, if it is qualified under SECTION Section 401(a) of the Code, (vi) all material communications with any Governmental Authority (including the Pension Benefit Guaranty Corporation and the IRS) given or received within the last three years, and (vii) a description of all unwritten A Benefit Plans, if any.
(b) To the knowledge of A, each A Each CGI Benefit Plan has been administered in all material respects in accordance with its terms and all contributions required to be made under the terms of any of the A CGI Benefit Plans as of the date hereof of this Agreement have been timely made or have been reflected on A's the most recent consolidated balance sheetsheet filed or incorporated by reference in the CGI Reports prior to the date of this Agreement. All Except as set forth in Section 5.09(b) of the A Benefit Plans are in compliance CGI Disclosure Schedule, with all applicable requirements of Law, including ERISA and the Code, except respect to the extent that CGI Benefit Plans, no event has occurred and, to the knowledge of CGI, there exists no condition or set of circumstances in connection with which CGI or any CGI Subsidiary could be subject to any liability under the terms of such noncompliance would not have an A CGI Benefit Plans, ERISA, the Code or any other applicable Law which could reasonably be expected to have, individually or in the aggregate, a CGI Material Adverse Effect.
(c) There are no pending actions, claims or lawsuits that have been asserted regarding the A Benefit Plans directly or, to the knowledge of A, against any fiduciary of any A Benefit Plan with respect to their operation (other than routine benefit claims) which could result Except as set forth in liability.
(d) There is no A Benefit Plan that is a "multiemployer plan" (within the meaning of SECTION 3(37Section 5.09(c) of ERISA).
(e) Each A Benefit Plan which is a "group health plan" (as defined in SECTION 607(1) of ERISA) is in compliance with SECTION 601 et seq. of ERISAthe CGI Disclosure Schedule, the Health Insurance Portability and Accountability Act and any other applicable federal, state or local law.
(f) Neither A neither CGI nor any subsidiary of A CGI Subsidiary is a party to any collective bargaining or other labor union contract applicable to persons employed by A or any subsidiary of A and neither A nor any subsidiary of A is negotiating any collective bargaining agreements. As of the date hereof, there is no labor dispute, strike or work stoppage against A or any subsidiary of A pending or, to the knowledge of A, threatened in writing which may interfere with the business activities of A, except where such dispute, strike or work stoppage would not have an A Material Adverse Effect. As of the date hereof, to the knowledge of A, none of A or any subsidiary of A or their respective representatives or employees, has committed any unfair labor practices in connection with the operation of the business of A or any of its subsidiaries, and there is no charge or complaint against A or any subsidiary of A by the National Labor Relations Board or any comparable federal or state agency pending or threatened in writing, except where such unfair labor practice, charge or complaint would not have an A Material Adverse Effect.
(g) A has delivered to B true and correct copies of (i) all employment agreements with officers of A and the subsidiaries of A; (ii) all severance plans, agreements, programs and policies of A and the subsidiaries of A with or relating to their employees; (iii) all plans, programs, agreements and other arrangements intended to satisfy the performance-based exception under SECTION 162(m) of the Code; and (iv) all plans, programs, agreements and other arrangements of A and the subsidiaries of A with or relating to their respective employees which contain change in control provisions.
(h) Except as required by Law, no A Benefit Plan provides, or has liability with respect to, retiree medical or other retiree welfare benefits to any person.
(i) A is not a party to any agreement or arrangement that would result, separately or in the aggregate, in the payment of any "excess parachute payments" within the meaning of SECTION 280G of the Code (disregarding SECTION 280G(b)(4) of the Code).
(j) The consummation of the transactions contemplated by this Agreement will not (i) entitle any current or former employee of A to severance pay, unemployment compensation or any similar payment; (ii) accelerate the time of payment or vesting of, or increase the amount of, any compensation due to any current or former employee of A; (iii) reasonably be expected to result in any "excess parachute payment" under SECTION 280G of the Code; or (iv) result in any material liability to any present or former employee, including as a result of WARN.
(k) A has no material liability, whether absolute or contingent, including any material obligations under any A Benefit Plan, with respect to any misclassification of any person as an independent contractor rather than as an employee, or with respect to any employee leased from another employer.
(l) A has not entered into any transaction with any A Benefit Plan.
(m) In respect of all employees of A (other than A's current Chief Executive Officer and A's current Chief Financial Officer), liabilities of A and its subsidiaries in respect of any (i) severance payments and (ii) payments in respect of the cancellation of outstanding A Options in accordance with SECTION 2.05 hereof, arising in connection with the consummation of the A Merger, shall not exceed $1,300,000 in the aggregate.
(n) SECTION 4.10(n) of the A Disclosure Schedule sets forth (i) a true and correct list of all individuals who would be entitled to severance payments pursuant to an individual agreement with A or any of its subsidiaries and the amount of cash severance payments to which each such person would be entitled and (ii) with respect to any formal or informal severance program, plan or arrangement of A or any of its subsidiaries that does not involve an individual agreement between A or any of its subsidiaries and any individual, (A) a brief written description of such program, plan or arrangement and (B) the number of individuals entitled to severance benefits under such program, plan or arrangement.
(o) To the knowledge of A based on a good faith interpretation of the Stabilization Act, (i) except as set forth in SECTION 4.10(o) of the A Disclosure Schedule, no A employee's or officer's total compensation (within the meaning of the Stabilization Act) exceeded $300,000 in calendar year 2000 and (ii) with respect to any persons so identified pursuant to clause (i), A has not made or promised to make any payments or taken any action which may adversely affect the Company's ability to obtain a Federal credit instrument under SECTION 101(a)(1) of the Stabilization Act.employed
Appears in 1 contract
Samples: Agreement and Plan of Merger and Reorganization (Somatix Therapy Corporation)
Employee Benefit Plans; Labor Matters. (a) With respect to each employee benefit plan, policy, commitment, program, arrangement and contract (including, without limitation, any employee benefit plan, as defined in SECTION 3(3) of ERISA, sponsored, Benefit Plan maintained or contributed to, or to which there is an obligation to contribute, by Athe Seller, or with respect to which A the Seller could incur liability under Title IV of ERISA, including, but not limited to, SECTION Section 4069, 4212(c) or 4204 of ERISA (ERISA, the "A BENEFIT PLANS"), A Seller has delivered or made available to B and the Company Purchaser a true and correct copy of (i) the most recent summary plan description related to each A Benefit Plan and all amendments thereto for which a summary plan description is required, (ii) each trust agreement relating to such Benefit Plan, (iii) the most recent annual report (Form 5500) filed with the IRS, (ii) such Benefit Plan, (iii) each trust agreement relating to such Benefit Plan, (iv) the most recent summary plan description for each Benefit Plan for which a summary plan description is required, (v) the most recent actuarial report and/or financial statement, if any, or valuation relating to an A a Benefit Plan, Plan subject to Title IV of ERISA and (vvi) the most recent determination letter, if any, issued by the IRS with respect to any A Benefit Plan qualified under SECTION Section 401(a) of the Code, (vi) all material communications with any Governmental Authority (including the Pension Benefit Guaranty Corporation and the IRS) given or received within the last three years, and (vii) a description of all unwritten A Benefit Plans, if any.
(b) To With respect to each Benefit Plan, no event has occurred and, to the best knowledge of Athe Seller, each A Benefit Plan has been administered there exists no condition or set of circumstances, in all material respects in accordance connection with its terms and all contributions required which the Seller could be subject to be made any liability under the terms of such Benefit Plan, ERISA, the Code or any of the A Benefit Plans as of the date hereof have been timely made or have been reflected on A's most recent consolidated balance sheet. All of the A Benefit Plans are in compliance with all other applicable requirements of Law, including ERISA and the Code, except to the extent that any such noncompliance would not have an A Material Adverse Effect.
(c) There are no pending actions, claims or lawsuits that have been asserted regarding the A Benefit Plans directly or, The Seller has made available to the knowledge of A, against any fiduciary of any A Benefit Plan with respect to their operation (other than routine benefit claims) which could result in liability.
(d) There is no A Benefit Plan that is a "multiemployer plan" (within the meaning of SECTION 3(37) of ERISA).
(e) Each A Benefit Plan which is a "group health plan" (as defined in SECTION 607(1) of ERISA) is in compliance with SECTION 601 et seq. of ERISA, the Health Insurance Portability and Accountability Act and any other applicable federal, state or local law.
(f) Neither A nor any subsidiary of A is a party to any Purchaser all collective bargaining or other labor union contract contracts to which the Seller is a party applicable to persons employed by A or any subsidiary of A the Seller and neither A nor any subsidiary of A is negotiating any no collective bargaining agreementsagreement is being negotiated by the Seller. As of the date hereofof this Agreement, there is no pending or threatened labor dispute, strike or work stoppage against A or any subsidiary of A pending or, to the knowledge of A, threatened in writing Seller which may interfere with the business activities of A, except where such dispute, strike or work stoppage would not have an A Material Adverse Effectthe Seller. As of the date hereofof this Agreement, to the best knowledge of Athe Seller, none neither the Seller nor any of A or any subsidiary of A or their respective its representatives or employees, has employees have committed any unfair labor practices in connection with the operation of the business of A or any of its subsidiariesthe Seller, and there is no pending or threatened charge or complaint against A or any subsidiary of A the Seller by the National Labor Relations Board or any comparable federal or state agency pending or threatened in writing, except where such unfair labor practice, charge or complaint would not have an A Material Adverse Effectagency.
(gd) A The Seller has delivered made available to B true and correct copies of the Purchaser (i) copies of all employment agreements with officers employees of A and the subsidiaries of ASeller; (ii) copies of all agreements of the Seller with consultants who are individuals obligating the Seller to make annual cash payments in an amount exceeding $100,000; (iii) a schedule listing all employees of the Seller who have executed a non-competition agreement with the Seller; (iv) copies of all severance plans, agreements, programs and policies of A and the subsidiaries of A Seller with or relating to their its employees; (iii) all plans, programs, agreements and other arrangements intended to satisfy the performance-based exception under SECTION 162(m) of the Code; and (iv) copies of all plans, programs, agreements and other arrangements of A and the subsidiaries of A Seller with or relating to their respective its employees which contain change in change-in-control provisions.
(he) Except as provided in the employment agreements referred to in clause (i) of Section 8.11(d), or as otherwise required by Law, (x) no A Benefit Plan provides, or has liability with respect to, provides retiree medical or other retiree welfare life insurance benefits to any person.
person and (iy) A the Seller is not a party contractually obligated (whether or not in writing) to any agreement or arrangement that would result, separately or in the aggregate, in the payment of any "excess parachute payments" within the meaning of SECTION 280G of the Code (disregarding SECTION 280G(b)(4) of the Code).
(j) The consummation of the transactions contemplated by this Agreement will not (i) entitle any current or former employee of A to severance pay, unemployment compensation or any similar payment; (ii) accelerate the time of payment or vesting of, or increase the amount of, any compensation due to any current or former employee of A; (iii) reasonably be expected to result in any "excess parachute payment" under SECTION 280G of the Code; or (iv) result in any material liability to any present or former employee, including as a result of WARN.
(k) A has no material liability, whether absolute or contingent, including any material obligations under any A Benefit Plan, with respect to any misclassification of provide any person as an independent contractor rather than as an employee, with life insurance or with respect to any employee leased from another employermedical benefits upon retirement or termination of employment.
(l) A has not entered into any transaction with any A Benefit Plan.
(m) In respect of all employees of A (other than A's current Chief Executive Officer and A's current Chief Financial Officer), liabilities of A and its subsidiaries in respect of any (i) severance payments and (ii) payments in respect of the cancellation of outstanding A Options in accordance with SECTION 2.05 hereof, arising in connection with the consummation of the A Merger, shall not exceed $1,300,000 in the aggregate.
(n) SECTION 4.10(n) of the A Disclosure Schedule sets forth (i) a true and correct list of all individuals who would be entitled to severance payments pursuant to an individual agreement with A or any of its subsidiaries and the amount of cash severance payments to which each such person would be entitled and (ii) with respect to any formal or informal severance program, plan or arrangement of A or any of its subsidiaries that does not involve an individual agreement between A or any of its subsidiaries and any individual, (A) a brief written description of such program, plan or arrangement and (B) the number of individuals entitled to severance benefits under such program, plan or arrangement.
(o) To the knowledge of A based on a good faith interpretation of the Stabilization Act, (i) except as set forth in SECTION 4.10(o) of the A Disclosure Schedule, no A employee's or officer's total compensation (within the meaning of the Stabilization Act) exceeded $300,000 in calendar year 2000 and (ii) with respect to any persons so identified pursuant to clause (i), A has not made or promised to make any payments or taken any action which may adversely affect the Company's ability to obtain a Federal credit instrument under SECTION 101(a)(1) of the Stabilization Act.
Appears in 1 contract
Samples: Asset Purchase Agreement (Wellcare Management Group Inc)
Employee Benefit Plans; Labor Matters. (a) With respect to each employee benefit fund, plan, policy, commitment, program, arrangement and or contract (including, without limitation, any “employee benefit plan”, as defined in SECTION Section 3(3) of ERISA) maintained, sponsored, maintained sponsored or contributed toto or required to be contributed to by Company or other trade or business (whether or not incorporated) treated as a single employer with Company (a “Company ERISA Affiliate”) pursuant to Code Section 414(b), (c), (m) or (o) or to which there Company or any Company ERISA Affiliate is an obligation to contribute, by Aa party, or with respect to which A Company or any Company ERISA Affiliate could incur liability under Title IV of ERISA, including, but not limited to, SECTION Section 4069, 4212(c) or 4204 of ERISA or Section 412 of the Code (the "A BENEFIT PLANS"“Company Benefit Plans”), A Company has delivered or made available to B and the Company Parent a true true, complete and correct copy of (i) such Company Benefit Plan and the most recent summary plan description related to each A such Company Benefit Plan and all amendments thereto for which Plan, if a summary plan description is requiredrequired therefor, (ii) each trust agreement or other funding arrangement relating to such Company Benefit Plan, (iii) the most recent annual report (Form 5500) filed with the IRS) with respect to such Company Benefit Plan, (iv) the most recent actuarial report and/or or financial statement, if any, statement relating to an A such Company Benefit Plan, Plan and (v) the most recent determination letter, if any, letter issued by the IRS with respect to any A such Company Benefit Plan Plan, if it is intended to be qualified under SECTION Section 401(a) of the Code, (vi) all material communications with any Governmental Authority (including the Pension Benefit Guaranty Corporation and the IRS) given or received within the last three years, and (vii) a description of all unwritten A Benefit Plans, if any.
(b) To the knowledge of A, each A Each Company Benefit Plan has been administered in all material respects in accordance with its terms and all applicable laws, including, without limitation, ERISA and the Code, and all contributions required to be made under the terms of any of the A Company Benefit Plans as of the date hereof of this Agreement have been timely made or have been reflected on A's the most recent consolidated balance sheet. All of sheet filed or incorporated by reference in the A Benefit Plans are in compliance with all applicable requirements of Law, including ERISA and the Code, except Company Reports prior to the extent that date of this Agreement. With respect to the Company Benefit Plans, no event has occurred and, to the Knowledge of Company, there exists no condition or set of circumstances in connection with which Company or any Company ERISA Affiliate could be subject to any material liability (other than for routine benefit liabilities) under the terms of such noncompliance would not have an A Material Adverse EffectCompany Benefit Plans, ERISA, the Code or any other applicable Law.
(c) There are no Company on behalf of itself and all of the Company ERISA Affiliates hereby represents that: (i) each Company Benefit Plan which is intended to be qualified under Section 401(a) of the Code or Section 401(k) of the Code has received a favorable determination letter from the IRS as to its qualified status under the Code or either an application for such determination is pending actionsor the period for submitting such application under Code Section 401 with the ability to effect remedial amendments has not expired, claims and each trust established in connection with any Company which is intended to be exempt from federal income taxation under Section 501(a) of the Code has received a determination letter from the IRS that it is so exempt or lawsuits that have been asserted regarding either an application for such determination is pending or the A Benefit Plans directly orperiod for submitting such application under Code Section 401 with the ability to effect remedial amendments has not expired,, and to the knowledge Knowledge of A, against any fiduciary Company no fact or event has occurred since the date of any A such determination letter received from the IRS to adversely affect the qualified status of any such Company Benefit Plan or the exempt status of any such trust; (ii) to Knowledge of Company there has been no prohibited transaction (within the meaning of Section 406 of ERISA or Section 4975 of the Code) with respect to their operation any Company Benefit Plan; (iii) each Company Benefit Plan can be amended, terminated or otherwise discontinued after the Effective Time in accordance with its terms, without liability, other than routine (A) liability for ordinary administrative expenses typically incurred in a termination event or (B) if the Company Benefit Plan is a pension benefit claimsplan subject to Part 2 of Title I of ERISA, liability for the accrued benefits as of the date of such termination (if and to the extent required by ERISA) which could result to the extent that either there are sufficient assets set aside in liabilitya trust or insurance contract to satisfy such liability or such liability is reflected on the most recent consolidated balance sheet filed or incorporated by reference in the Company Reports prior to the date of this Agreement.
(d) There No Company Benefit Plan is a multiemployer pension plan (as defined in Section 3(37) of ERISA) or other pension plan subject to Title IV of ERISA and neither Company nor any Company ERISA Affiliate has sponsored or contributed to or been required to contribute to a multiemployer pension plan or other pension plan subject to Title IV of ERISA. No material liability under Title IV of ERISA has been incurred by Company or any Company ERISA Affiliate that has not been satisfied in full, and no A condition exists that presents a material risk to Company or any Company ERISA Affiliate of incurring or being subject (whether primarily, jointly or secondarily) to a material liability thereunder. None of the assets of Company or any Company ERISA Affiliate is, or may reasonably be expected to become, the subject of any lien arising under ERISA or Section 412(n) of the Code.
(e) With respect to each Company Benefit Plan that is a "multiemployer plan" subject to Title IV or Part 3 of Title I of ERISA or Section 412 of the Code, (i) no reportable event (within the meaning of SECTION 3(37Section 4043 of ERISA, other than an event that is not required to be reported before or within thirty (30) days of such event) has occurred or is expected to occur, (ii) there was not an accumulated funding deficiency (within the meaning of Section 302 of ERISA or Section 412 of the Code), whether or not waived, as of the most recently ended plan year of such Company Benefit Plan; and (iii) there is no “unfunded benefit liability” (within the meaning of Section 4001(a)(18) of ERISA).
(ef) Each A Benefit Plan Company has scheduled on Schedule 4.09(f) of the Company Disclosure Schedule and has delivered to Parent true, complete and correct copies of (i) all employment agreements with officers and all consulting agreements of Company providing for annual compensation in excess of $100,000, (ii) all severance plans, agreements, programs and policies of Company with or relating to their respective employees, directors or consultants, and (iii) all plans, programs, agreements and other arrangements of Company with or relating to their respective employees, directors or consultants which contain “change of control” provisions. Except as set forth in Schedule 4.09(f) of the Company Disclosure Schedule, which discloses Company’s estimate of excess parachute payments based on assumptions described therein, there is no agreement, plan, arrangement or other contract covering any current or former employee or other service provider of Company or other Affiliate to which Company and/or any Company Affiliate is a "group health plan" party or by which Company and/or any Company Affiliate is bound that, considered individually or considered collectively with any other such agreements, plans, arrangements or other contracts, will, or could reasonably be expected to, as a result of the transactions contemplated hereby (whether alone or upon the occurrence of any additional or subsequent event, including (without limitation) termination of employee or other service status), give rise directly or indirectly to the payment of any amount that could reasonably be expected to be characterized as defined in SECTION 607(1a “parachute payment” within the meaning of Section 280G of the U.S. Internal Revenue Code. Schedule 4.09(f) of ERISAthe Company Disclosure Schedule lists each person who Company reasonably believes is, with respect to Company or any Company Affiliate, a “disqualified individual” (within the meaning of Section 280G of the U.S. Internal Revenue Code and the U.S. Treasury Regulation thereunder). Except as otherwise set forth in Section 4.09(f) is in compliance with SECTION 601 et seqof the Company Disclosure Schedule, neither the execution and delivery of this Agreement nor the consummation of any of the transactions contemplated hereunder (whether alone or upon the occurrence of any additional or subsequent event, including (without limitation) termination of employee or other service status) will accelerate the time of payment or vesting of any compensation or benefits under any Company Benefit Plan, or increase the amount of compensation or benefits due any employee or former employee of Company. On the Closing Date, Company shall deliver a complete update to Schedule 4.09(f) of ERISA, the Health Insurance Portability and Accountability Act and any other applicable federal, state or local lawCompany Disclosure Schedule current as of that date.
(fg) Neither A nor any subsidiary of A Company is not a party to any collective bargaining or other labor union contract applicable to persons Persons employed by A or any subsidiary of A Company and neither A nor any subsidiary of A is negotiating any no collective bargaining agreementsagreement is being negotiated by Company. As of the date hereof, there There is no labor dispute, strike or work stoppage against A or any subsidiary of A Company pending or, to the knowledge Knowledge of ACompany, threatened in writing which may interfere with the respective business activities of ACompany. Company has complied with all applicable laws relating to the employment of labor, including provisions thereof relating to wages, hours, equal employment opportunity, collective bargaining, non-discrimination, and the withholding and payment of social security and other Taxes except where for such dispute, strike or work stoppage failures to comply that would not reasonably be expected to have an A a Company Material Adverse Effect. As of the date hereofThere is no pending or, to the knowledge Knowledge of ACompany, none threatened charges of A or any subsidiary of A or their respective representatives or employees, has committed any unfair labor practices in connection or of employment discrimination or of any other wrongful action with the operation respect to any aspect of the business employment of A any person employed or any of its subsidiaries, and there is no charge or complaint against A or any subsidiary of A formerly employed by the National Labor Relations Board or any comparable federal or state agency pending or threatened in writing, except where such unfair labor practice, charge or complaint would not have an A Material Adverse Effect.
(g) A has delivered to B true and correct copies of (i) all employment agreements with officers of A and the subsidiaries of A; (ii) all severance plans, agreements, programs and policies of A and the subsidiaries of A with or relating to their employees; (iii) all plans, programs, agreements and other arrangements intended to satisfy the performance-based exception under SECTION 162(m) of the Code; and (iv) all plans, programs, agreements and other arrangements of A and the subsidiaries of A with or relating to their respective employees which contain change in control provisionsCompany.
(h) Except as required by Law, no A Company Benefit Plan provides, provides any of the following retiree or has liability with respect to, retiree medical or other retiree welfare post-employment benefits to any person.
Person: medical, disability or life insurance benefits. To the Knowledge of Company, Company and the Company ERISA Affiliates are in material compliance with (i) A is not a party to any agreement or arrangement that would result, separately or in the aggregate, in the payment of any "excess parachute payments" within the meaning of SECTION 280G requirements of the Code (disregarding SECTION 280G(b)(4) applicable health care continuation and notice provisions of the Code).
Consolidated Omnibus Budget Reconciliation Act of 1985 (j“COBRA”) The consummation of and the transactions contemplated by this Agreement will not regulations (iincluding proposed regulations) entitle any current or former employee of A to severance pay, unemployment compensation or any similar payment; (ii) accelerate the time of payment or vesting of, or increase the amount of, any compensation due to any current or former employee of A; (iii) reasonably be expected to result in any "excess parachute payment" under SECTION 280G of the Code; or (iv) result in any material liability to any present or former employee, including as a result of WARN.
(k) A has no material liability, whether absolute or contingent, including any material obligations under any A Benefit Plan, with respect to any misclassification of any person as an independent contractor rather than as an employee, or with respect to any employee leased from another employer.
(l) A has not entered into any transaction with any A Benefit Plan.
(m) In respect of all employees of A (other than A's current Chief Executive Officer and A's current Chief Financial Officer), liabilities of A and its subsidiaries in respect of any (i) severance payments thereunder and (ii) payments in respect the applicable requirements of the cancellation Health Insurance Portability and Accountability Act of outstanding A Options in accordance with SECTION 2.05 hereof, arising in connection with the consummation of the A Merger, shall not exceed $1,300,000 in the aggregate.
(n) SECTION 4.10(n) of the A Disclosure Schedule sets forth (i) a true and correct list of all individuals who would be entitled to severance payments pursuant to an individual agreement with A or any of its subsidiaries 1996 and the amount of cash severance payments to which each such person would be entitled and regulations (iiincluding the proposed regulations) with respect to any formal or informal severance program, plan or arrangement of A or any of its subsidiaries that does not involve an individual agreement between A or any of its subsidiaries and any individual, (A) a brief written description of such program, plan or arrangement and (B) the number of individuals entitled to severance benefits under such program, plan or arrangementthereunder.
(o) To the knowledge of A based on a good faith interpretation of the Stabilization Act, (i) except as set forth in SECTION 4.10(o) of the A Disclosure Schedule, no A employee's or officer's total compensation (within the meaning of the Stabilization Act) exceeded $300,000 in calendar year 2000 and (ii) with respect to any persons so identified pursuant to clause (i), A has not made or promised to make any payments or taken any action which may adversely affect the Company's ability to obtain a Federal credit instrument under SECTION 101(a)(1) of the Stabilization Act.
Appears in 1 contract
Employee Benefit Plans; Labor Matters. (a) With Section 4.14(a) of the Disclosure Schedules sets forth a true, correct and complete list of each Employee Plan and indicates which Employee Plans are PEO Plans. Sellers have made available to Buyers with respect to each employee benefit plan, policy, commitment, program, arrangement Employee Plan that is not a PEO Plan and contract (including, without limitation, any employee benefit plan, as defined in SECTION 3(3) of ERISA, sponsored, maintained or contributed to, or to which there is an obligation to contribute, by A, or the extent the following documents with respect to an Employee Plan that is a PEO Plan have been provided to the Sellers (which A could incur liability under Title IV the Sellers shall use their reasonable best efforts to obtain from the sponsor of ERISA, including, but not limited to, SECTION 4069, 4212(cthe PEO Plan) or 4204 of ERISA (the "A BENEFIT PLANS"), A has delivered or made available to B and the Company a true and correct copy of (i) the most recent summary each Employee Plan (or a description, if such plan description related to each A Benefit Plan is not written) and all amendments thereto for which and material written interpretations thereof, including a summary plan description is required, copy of (if applicable) (ii) all material Contracts including each trust agreement relating to such Benefit Plantrust, insurance or other funding arrangement, and each administrative services agreement, each as applicable, (iii) the most recent annual report each current summary plan description, summary of material modifications, and summaries of benefits and coverage (Form 5500) filed with the IRSif applicable), (iv) the three most recent actuarial report and/or financial statement, if any, relating recently filed IRS Forms 5500 and accompanying schedules and attachments thereto for each Employee Plan required to an A Benefit Planfile IRS Forms 5500, (v) the most recent determination letter, if any, issued by the IRS with respect to any A Benefit Plan qualified under SECTION 401(a) of the Coderecently prepared actuarial reports and financial statements, (vi) all material communications with any Governmental Authority policies pertaining to fiduciary liability insurance, (including vii) all discrimination and qualification tests for the three most recent plan years, (viii) all documents and correspondence relating thereto received from or provided to the Department of Labor, the Pension Benefit Guaranty Corporation and Corporation, the IRS) given IRS or received within any other Governmental Authority during the last past three years, years and (viiix) all current employee handbooks, manuals, policies and procedures (including any handbook, manual, policy or procedure provided or prepared by a description of all unwritten A Benefit Plans, if anyprofessional employer organization) that apply to any Service Provider.
(b) To Section 4.14(b) of the knowledge of Athe Disclosure Schedules sets forth a true, correct and complete list of each (i) Employment Agreement with an employee or former employee with respect to which the Sellers have continuing obligations as of the date hereof (other than at-will offer letters with no severance or change in control benefits or guaranteed term or payments), (ii) Consulting Agreement pursuant to which an Independent Contractor is entitled to receive (or is reasonably expected to be entitled to receive) more than $50,000 during any 12-month period and (iii) restrictive covenant Contract and indemnification Contract entered into with the Sellers’ executive officers, in each case as in effect as of the date of this Agreement. A copy of each such Employment Agreement, Consulting Agreement or other Contract, as the case may be, together with any amendments thereto, has been made available to Buyers. Except as set forth on Section 4.14(b) of the Disclosure Schedules, each A Benefit Plan current and former Employee and Independent Contractor has executed a nondisclosure and assignment-of-rights agreement for the benefit of the Sellers, vesting all rights in work product created by such Employee or Independent Contractor during such Person’s affiliation with the Sellers, and a copy of each such agreement has been made available to Buyers. To Sellers’ Knowledge, no current Employee or Independent Contractor is a party to, or is otherwise bound by, any Contract that adversely affects the performance of such Employee or Independent Contractor’s duties to the Sellers. The Sellers have properly classified, pursuant to the Code and any other applicable Law, all Independent Contractors used by the Sellers, and no such Independent Contractor has a reasonable basis for a claim for benefits available to Employees only under any Employee Plan. The Sellers have no “leased employees” within the meaning of Section 414(n) of the Code.
(c) The Sellers have made available to Buyers a true, correct and complete list of all former Employees whose employment has been terminated within 90 days preceding the date hereof, or whose work hours have been reduced by fifty percent (50%) or more within six months preceding the date hereof, including for each such Person: name, site of employment, job title, date of hire, date of employment loss, termination or layoff, if applicable, and amount of reduction in hours for each calendar month during the six-month period preceding the anticipated Closing Date, if applicable. To Sellers’ Knowledge, no Employee or Independent Contractor intends to terminate his or her employment or services with the applicable Seller.
(d) The Sellers have made available to Buyers a true, correct and complete list that sets forth, as of the date hereof: (i) each current Employee, including each such Person’s name, employer, job title, hire date, work location, current base salary or wage or commission rate, most recent annual bonus received and current annual bonus or incentive opportunity (including performance goals and target and maximum amounts), all other wage or compensation arrangements, fringe benefits (other than those available to all Employees), whether part-time or full-time, status as exempt or non-exempt under the Fair Labor Standards Act, immigration status, whether such person has entered in an Employment Agreement, and whether such individual is in active employment or on leave, and if on leave, the nature of such leave and the date of expected return; and (ii) each current Independent Contractor, including each such Person’s name, location, description of services, consulting or contracting term, consulting or contracting fee and an indication of whether such Person has entered into a Contract with any of the Sellers. Except as set forth on Section 4.14(d) of the Disclosure Schedules, the employment of each Employee and the services of each Independent Contractor is terminable at will without compensation or other penalty. The engagement of each Employee and Independent Contractor is subject to the Laws of the United States only. The Sellers have a completed Form I-9 (Employment Eligibility Verification) for each Employee, and to the extent required by applicable Law, each such Form I-9 has since been updated.
(e) No Employee Plan is, and neither the Sellers nor any of their ERISA Affiliates have ever sponsored, maintained, administered, or contributed to (or has had any obligation to contribute to) or has or is reasonably expected to have any direct or indirect liability with respect to: (i) a “defined benefit plan” ( as defined in Section 3(35) of ERISA); (ii) a “multiemployer plan” (as defined in Sections 4001(a)(3) and 3(37)(A) of ERISA): or (iii) a pension plan subject to Section 302 or Title IV of ERISA or Section 412 or 4971 of the Code.
(f) Each Employee Plan other than a PEO Plan, and to Sellers’ Knowledge, each Employee Plan that is a PEO Plan, has been established, maintained, funded and administered in all material respects in accordance compliance with its terms and all contributions required to be made under the terms of any of the A Benefit Plans as of the date hereof have been timely made or have been reflected on A's most recent consolidated balance sheet. All of the A Benefit Plans are in compliance with all applicable requirements of Law, including ERISA and the Code, except to the extent that any such noncompliance would not have an A Material Adverse Effect.
(c) There are no pending actions, claims or lawsuits that have been asserted regarding the A Benefit Plans directly or, to the knowledge of A, against any fiduciary of any A Benefit Plan with respect to their operation . No Action (other than routine benefit claims) which could result in liability.
(d) There is no A Benefit Plan that is a "multiemployer plan" (within the meaning of SECTION 3(37) of ERISA).
(e) Each A Benefit Plan which is a "group health plan" (as defined in SECTION 607(1) of ERISAclaims for benefits) is in compliance with SECTION 601 et seq. of ERISA, the Health Insurance Portability and Accountability Act and any other applicable federal, state pending against or local law.
(f) Neither A nor any subsidiary of A is a party to any collective bargaining or other labor union contract applicable to persons employed by A or any subsidiary of A and neither A nor any subsidiary of A is negotiating any collective bargaining agreements. As of the date hereof, there is no labor dispute, strike or work stoppage against A or any subsidiary of A pending involves or, to Sellers’ Knowledge, is threatened against or threatens to involve, any Employee Plan (excluding any Action involving a PEO Plan in which the knowledge of A, threatened in writing which may interfere with Action does not relate to the business activities of A, except where such dispute, strike or work stoppage would not have an A Material Adverse Effect. As participation of the date hereofSellers). The Sellers have complied in all material respects with applicable Law with respect to each plan, arrangement or policy mandated by applicable Law (including with respect to the knowledge payment of A, none social insurance Taxes or similar contributions to a fund of A or any subsidiary a Governmental Authority with respect to wages of A or their respective representatives or employees, has committed any unfair labor practices in connection with the operation of the business of A or any of its subsidiaries, and there is no charge or complaint against A or any subsidiary of A by the National Labor Relations Board or any comparable federal or state agency pending or threatened in writing, except where such unfair labor practice, charge or complaint would not have an A Material Adverse Effectemployee).
(g) A has delivered The Sellers and their Subsidiaries have paid all salaries, bonuses, commissions, wages, severance and accrued vacation pay due to B true Employees, and correct copies of (i) all employment agreements with officers of A and any such amounts for any period ending on or before the subsidiaries of A; (ii) all severance plans, agreements, programs and policies of A and Closing Date to the subsidiaries of A with extent required to be paid on or relating to their employees; (iii) all plans, programs, agreements and other arrangements intended to satisfy before the performance-based exception under SECTION 162(m) of the Code; and (iv) all plans, programs, agreements and other arrangements of A and the subsidiaries of A with or relating to their respective employees which contain change in control provisionsClosing Date.
(h) Except as required by Law, no A Benefit Plan provides, or has liability with respect to, retiree medical or other retiree welfare benefits to any person.
(i) A is not a party to any agreement or arrangement that would result, separately or set forth in the aggregate, in the payment of any "excess parachute payments" within the meaning of SECTION 280G of the Code (disregarding SECTION 280G(b)(4Section 4.14(h) of the Code).
(j) The Disclosure Schedules, neither the execution of this Agreement nor the consummation of the transactions contemplated by this Agreement hereby (either alone or together with any other event) will not (i) entitle any current or former employee of A Service Provider to severance payany payment or benefit, unemployment compensation including any bonus, retention, severance, retirement or any similar payment; job security payment or benefit, (ii) accelerate the time of payment or vesting ofor trigger any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, or increase the amount ofpayable or trigger any other obligation under, any compensation due to any current or former employee of A; Employee Plan, (iii) reasonably be expected to result in limit or restrict the right of any "excess parachute payment" under SECTION 280G of the Code; Sellers to merge, amend or terminate any Employee Plan or (iv) result in the payment of any material liability amount that could, individually or in combination with any other such payment, constitute an “excess parachute payment,” as defined in 280G(b)(1) of the Code (without regard to any present or former employee, including as a result of WARNsubsection (b)(4) thereof).
(ki) A has To the Sellers’ Knowledge, no material liability, whether absolute allegations of sexual harassment or contingent, including other sexual misconduct have been made since the Reference Date against any material obligations under former or current officer of the Sellers or any A Benefit Plan, with respect to of their Subsidiaries or any misclassification of any person as an independent contractor rather than as an employee, Employee in a managerial or with respect to any employee leased from another employer.
(l) A has executive position. The Sellers have not entered into any transaction with any A Benefit Plansettlement agreements related to allegations of sexual harassment or misconduct by a Service Provider.
(m) In respect of all employees of A (other than A's current Chief Executive Officer and A's current Chief Financial Officer), liabilities of A and its subsidiaries in respect of any (i) severance payments and (ii) payments in respect of the cancellation of outstanding A Options in accordance with SECTION 2.05 hereof, arising in connection with the consummation of the A Merger, shall not exceed $1,300,000 in the aggregate.
(n) SECTION 4.10(n) of the A Disclosure Schedule sets forth (i) a true and correct list of all individuals who would be entitled to severance payments pursuant to an individual agreement with A or any of its subsidiaries and the amount of cash severance payments to which each such person would be entitled and (ii) with respect to any formal or informal severance program, plan or arrangement of A or any of its subsidiaries that does not involve an individual agreement between A or any of its subsidiaries and any individual, (A) a brief written description of such program, plan or arrangement and (B) the number of individuals entitled to severance benefits under such program, plan or arrangement.
(o) To the knowledge of A based on a good faith interpretation of the Stabilization Act, (i) except as set forth in SECTION 4.10(o) of the A Disclosure Schedule, no A employee's or officer's total compensation (within the meaning of the Stabilization Act) exceeded $300,000 in calendar year 2000 and (ii) with respect to any persons so identified pursuant to clause (i), A has not made or promised to make any payments or taken any action which may adversely affect the Company's ability to obtain a Federal credit instrument under SECTION 101(a)(1) of the Stabilization Act.
Appears in 1 contract
Samples: Asset Purchase Agreement (Timber Pharmaceuticals, Inc.)
Employee Benefit Plans; Labor Matters. (i) Section 2.1(l)(i) of the Company Disclosure Schedule contains a true and complete list of each (a) With respect to each employee benefit plan, plan and any material policy, commitment, program, program or arrangement and contract (including, without limitation, any each “employee benefit plan, as defined in SECTION ,” within the meaning of Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended (“ERISA”) and each employee benefit plan and any material policy, program or arrangement that is governed by the laws of any jurisdiction other than the United States) sponsored, maintained or contributed toto by the Company or any of its Subsidiaries for the benefit of current or former employees, directors, consultants or to which there is an obligation to contribute, by A, independent contractors or with respect to which A could incur liability the Company or any of its Subsidiaries has any material liability, and (b) benefit arrangement or Contract between the Company or its Subsidiaries and any current or former employees, directors, consultants and independent contractors (which have or had an annual base compensation of more than $75,000), and with respect to each of (a) and (b) which sets forth any incentive, bonus, change in control, severance, redundancy payment, notice of termination of employment, relocation, employment and insurance provisions under Title IV which any such current or former employee, director, consultant or independent contractor of ERISAthe Company or any of its Subsidiaries (the “Company Participants”) has any present or future right to material benefits (collectively, includingthe “Company Benefit Plans”).
(a) Each of the Company Benefit Plans has been maintained, funded, operated, and administered in compliance with applicable law, its governing plan document and, where applicable, any contractual commitments to participants including but not limited toto ERISA and the Code, SECTION 4069except where such noncompliance would not reasonably be expected to have a Material Adverse Effect on the Company, 4212(c(b) or 4204 each of ERISA the Company Benefit Plans intended to be “qualified” within the meaning of Section 401(a) of the Code has received a favorable determination letter from the Internal Revenue Service (the "A BENEFIT PLANS"), A has delivered or made available to B and the Company a true and correct copy of (i“IRS”) the most recent summary plan description related to each A Benefit Plan and all amendments thereto for which a summary plan description is required, (ii) each trust agreement relating to such Benefit Planeffect, (iii) the most recent annual report (Form 5500) filed has been timely amended to comply in all material respects with the IRS, (iv) provisions of the most recent actuarial report and/or financial statement, if any, relating Tax legislation commonly referred to an A Benefit Plan, (v) the most recent determination letter, if any, issued by as “GUST” and “EGTRRA” and has been or will be submitted to the IRS with respect to any A Benefit Plan qualified under SECTION 401(afor a determination letter that takes such amendments into account within the remedial amendment period specified by Section 401(b) of the Code, (vi) all material communications with any Governmental Authority (including the Pension Benefit Guaranty Corporation and the IRSCompany knows of no event that would cause the disqualification of any such Company Benefit Plan, (c) given no Company Benefit Plan provides welfare or received within welfare-type benefits (whether or not insured) to Company Participants or their dependents or beneficiaries beyond the last three yearsCompany Participant’s termination of employment or termination of service of non-employees with the Company or any of its Subsidiaries, other than coverage mandated by applicable law or benefits the full cost of which is borne by the Company Participant (or his or her dependent or beneficiary), (d) no Company Benefit Plan or any other employee pension benefit plan that the Company, any Subsidiary or any other entity that, together with the Company or any Subsidiary, is treated as a single employer under Section 414 of the Code, maintains, contributes to or ever has maintained or contributed to (i) is a “multiemployer plan,” as such term is defined in Section 3(37) or 4001(a)(3) of ERISA, (ii) is subject to Section 412 of the Code or Title IV of ERISA or (iii) is a defined benefit plan not covered by 2.1(l)(ii)(d)(ii) above, and neither the Company nor any of its Subsidiaries has any liability (viicontingent or otherwise) under Title IV of ERISA or similar applicable law on account of any such plan or otherwise, (e) neither the Company nor any of its Subsidiaries has engaged in a description transaction with respect to any Company Benefit Plan which to the Company’s knowledge would subject such entity to either a civil penalty assessed pursuant to Sections 502(i) or 502(1) of all unwritten A Benefit PlansERISA or a Tax imposed pursuant to Section 4975 or 4976 of the Code, if any.
(bf) To except as disclosed in the Company SEC Reports, to the knowledge of Athe Company, each A there are no pending or threatened claims (other than routine claims for benefits, but including an individual participant’s claims under a Company health and welfare plan that, in the aggregate, exceeds or is likely to exceed $100,000) by, on behalf of or against any of the Company Benefit Plans or any trusts related thereto, nor has the Company or any of its Subsidiaries received notice of any threatened, actions or proceedings by any Governmental Entity, against or otherwise involving any Company Benefit Plan, (g) there are no uninsured liabilities with respect to any benefits or claims under any Company Benefit Plan, except as included as a liability in the financial statements included in the Company SEC Reports, (h) no event has occurred and no condition exists that to the Company’s knowledge would subject the Company or any of its Subsidiaries to any Tax, fine, lien, penalty or other liability with respect to any Company Benefit Plan imposed by ERISA or the Code or other applicable law, which would reasonably be expected to have a Material Adverse Effect on the Company, (i) any terminated Company Benefit Plan has been administered terminated in all material respects in accordance with its terms applicable laws and all benefits under any such terminated plan have been paid in accordance with the terms of such Company Benefit Plan, (j) each U.S. (and, to the Company’s knowledge, foreign) Company Benefit Plan in the form as of the Closing Date may be amended or terminated at any time after the Closing Date without material liability to the Company other than for accrued benefits and costs of termination, (k) all material contributions or amounts payable by the Company or any of its Subsidiaries as of the Effective Time with respect to any Company Benefit Plan in respect of current or prior plan years which are required to be reflected in the Company’s financial statements in accordance with GAAP have been paid or accrued in accordance with GAAP, and (l) the Company has made under available to Parent and the terms Merger Sub true and correct copies in all material respects of any all Company Benefit Plans and benefit arrangements or contracts listed in Section 2.1(l)(i) of the A Benefit Plans as of the date hereof have been timely made or have been reflected on A's most recent consolidated balance sheet. All of the A Benefit Plans are in compliance Company Disclosure Schedule, together with all applicable requirements of Lawamendments thereto, including ERISA and the Code, except to the extent that applicable, (i) all current summary plan descriptions; (ii) the most recent annual report on the IRS Form 5500-series, including any attachments thereto; (iii) the most recent accountant’s report, if any; and (iv) the most recent IRS determination letter. Except as provided pursuant to this Agreement or as disclosed on Section 2.1(1)(ii) of the Company Disclosure Schedule, neither the execution, delivery or performance of this Agreement by the Company nor the consummation by the Company of the transactions contemplated hereby shall (a) result in any payment becoming due to any Company Participant, (b) increase any benefits otherwise payable under any Company Benefit Plan, (c) result in any acceleration of the time of payment or vesting of any benefits under any Company Benefit Plan, (d) result in any forgiveness of indebtedness, (e) result in any obligations to fund benefits with respect to any current or former employees of the Company or any of its Subsidiaries or (f) violate the provisions of any agreement between a Company Participant and the Company or any of its Subsidiaries, except in each case where such noncompliance payment, increase, acceleration, forgiveness, funding or violation would not reasonably be expected to have an A a Material Adverse EffectEffect on the Company.
(ciii) There are no pending actions, claims or lawsuits that have been asserted regarding the A Benefit Plans directly or, to the knowledge of A, against any fiduciary of any A Benefit Plan with respect to their operation (other than routine benefit claims) which could result in liability.
(d) There is no A Benefit Plan that is a "multiemployer plan" (within the meaning of SECTION 3(37) of ERISA).
(e) Each A Benefit Plan which is a "group health plan" (as defined in SECTION 607(1) of ERISA) is in compliance with SECTION 601 et seq. of ERISA, the Health Insurance Portability and Accountability Act and any other applicable federal, state or local law.
(fa) Neither A the Company nor any subsidiary of A its Subsidiaries is a party to any collective bargaining or other labor union contract applicable to persons employed and no collective bargaining agreement is being negotiated by A the Company or any subsidiary of A its Subsidiaries and neither A nor any subsidiary of A is negotiating any there are no labor or collective bargaining agreements. As agreements that pertain to the employees of the date hereofCompany or any of its Subsidiaries other than works councils required by statute, (b) there is no pending or to the knowledge of the Company, threatened labor dispute, strike strike, work stoppage, lockout or work stoppage against A other labor controversy involving the Company or any subsidiary of A its Subsidiaries which may interfere with the respective business activities of the Company or any of its Subsidiaries, nor has the Company or any of its Subsidiaries experienced any such labor controversy within the past three years, (c) there is no union or similar organization currently certified, and there is no union representation question and no union or other organization activity that would be subject to the National Labor Relations Act (20 U.S.C. Section 151 et seq.) or similar applicable law exists, or to the Company’s knowledge, is threatened with respect to the Company’s or any of its Subsidiaries operations; (d) to the Company’s knowledge, no officer of the Company or any of its Subsidiaries (“Employee”) is a party to any confidentiality, non-competition, proprietary rights or other such agreement between such Employee and any other Person besides the Company or any of its Subsidiaries, as applicable, that would be material to the performance of such Employee’s employment duties, or the ability of the Company or Merger Sub to conduct their business, (e) there is no pending or, to the knowledge of Athe Company, threatened action, complaint, arbitration, proceeding or investigation against the Company or any of its Subsidiaries by or before any court, governmental agency, administrative agency, board, commission or arbitrator brought by or on behalf of any prospective, current or former employee, labor organization or other representative of employees of the Company or any of its Subsidiaries, (f) the Company and its Subsidiaries are in writing which may interfere compliance with all applicable laws, agreements, and policies relating to employment of labor, employment practices and terms and conditions of employment, including, but not limited to, all such laws relating to hours, wages, civil rights, safety and health, workers’ compensation, and the business activities collection and payment of Awithholding and/or Social Security taxes and other similar taxes, except where such dispute, strike or work stoppage noncompliance would not reasonably be expected to have an A a Material Adverse Effect. As Effect on the Company, (g) except as disclosed in the Company SEC Reports, neither the Company nor any of its Subsidiaries has closed any office, plant or facility, effectuated any layoffs of employees or otherwise engaged in any act that would trigger the application of the WARN Act or any similar applicable law and none of the affected employees has suffered an “employment loss” (as defined in the WARN Act) since ninety days prior to the date hereof, to or implemented any early retirement, separation or window program within the knowledge of Apast year, none of A or any subsidiary of A or their respective representatives or employees, nor has committed any unfair labor practices in connection with the operation of the business of A Company or any of its subsidiariesSubsidiaries planned or announced any such action or program for the future, and there is no charge or complaint against A or any subsidiary of A by the National Labor Relations Board or any comparable federal or state agency pending or threatened in writing, except where such unfair labor practice, charge or complaint would not have an A Material Adverse Effect.
(g) A has delivered to B true and correct copies of (i) all employment agreements with officers of A and the subsidiaries of A; (ii) all severance plans, agreements, programs and policies of A and the subsidiaries of A with or relating to their employees; (iii) all plans, programs, agreements and other arrangements intended to satisfy the performance-based exception under SECTION 162(m) of the Code; and (iv) all plans, programs, agreements and other arrangements of A and the subsidiaries of A with or relating to their respective employees which contain change in control provisions.
(h) Except all salaries, wages and other benefits, bonuses and commissions of all directors, officers and employees of the Company and its Subsidiaries have, to the extent due, been paid or discharged in full or are reflected as required by Law, no A Benefit Plan provides, or has liability with respect to, retiree medical or other retiree welfare benefits to any person.
(i) A is not a party to any agreement or arrangement that would result, separately or liabilities on the financial statements contained in the aggregate, in the payment of any "excess parachute payments" within the meaning of SECTION 280G of the Code (disregarding SECTION 280G(b)(4) of the Code)Company SEC Reports.
(j) The consummation of the transactions contemplated by this Agreement will not (i) entitle any current or former employee of A to severance pay, unemployment compensation or any similar payment; (ii) accelerate the time of payment or vesting of, or increase the amount of, any compensation due to any current or former employee of A; (iii) reasonably be expected to result in any "excess parachute payment" under SECTION 280G of the Code; or (iv) result in any material liability to any present or former employee, including as a result of WARN.
(k) A has no material liability, whether absolute or contingent, including any material obligations under any A Benefit Plan, with respect to any misclassification of any person as an independent contractor rather than as an employee, or with respect to any employee leased from another employer.
(l) A has not entered into any transaction with any A Benefit Plan.
(m) In respect of all employees of A (other than A's current Chief Executive Officer and A's current Chief Financial Officer), liabilities of A and its subsidiaries in respect of any (i) severance payments and (ii) payments in respect of the cancellation of outstanding A Options in accordance with SECTION 2.05 hereof, arising in connection with the consummation of the A Merger, shall not exceed $1,300,000 in the aggregate.
(n) SECTION 4.10(n) of the A Disclosure Schedule sets forth (i) a true and correct list of all individuals who would be entitled to severance payments pursuant to an individual agreement with A or any of its subsidiaries and the amount of cash severance payments to which each such person would be entitled and (ii) with respect to any formal or informal severance program, plan or arrangement of A or any of its subsidiaries that does not involve an individual agreement between A or any of its subsidiaries and any individual, (A) a brief written description of such program, plan or arrangement and (B) the number of individuals entitled to severance benefits under such program, plan or arrangement.
(o) To the knowledge of A based on a good faith interpretation of the Stabilization Act, (i) except as set forth in SECTION 4.10(o) of the A Disclosure Schedule, no A employee's or officer's total compensation (within the meaning of the Stabilization Act) exceeded $300,000 in calendar year 2000 and (ii) with respect to any persons so identified pursuant to clause (i), A has not made or promised to make any payments or taken any action which may adversely affect the Company's ability to obtain a Federal credit instrument under SECTION 101(a)(1) of the Stabilization Act.
Appears in 1 contract
Employee Benefit Plans; Labor Matters. (a) With respect to each employee benefit plan, policy, commitment, program, arrangement and contract (including, without limitation, any "employee benefit plan", as defined in SECTION Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA, sponsored, ")) maintained or contributed to, to by the Company or to which there is an obligation to contribute, by Aany Company Subsidiary, or with respect to which A the Company or any Company Subsidiary could incur liability under Title IV of ERISA, including, but not limited to, SECTION Section 4069, 4212(c) or 4204 of ERISA (the "A BENEFIT PLANSCompany Benefit Plans"), A the Company has delivered or made available to B and the Company Parent a true and correct copy of (i) the most recent summary plan description related to each A Benefit Plan and all amendments thereto for which a summary plan description is required, (ii) each trust agreement relating to such Benefit Plan, (iii) the most recent annual report (Form 5500) filed with the Internal Revenue Service (the "IRS"), (ii) such Company Benefit Plan, (iii) each trust agreement relating to such Company Benefit Plan, (iv) the most recent actuarial report and/or financial statement, if any, relating to an A summary plan description for each Company Benefit PlanPlan for which a summary plan description is required, (v) the most recent actuarial report or valuation relating to a Company Benefit Plan subject to Title IV of ERISA and (vi) the most recent determination letter, if any, issued by the IRS with respect to any A Company Benefit Plan qualified under SECTION section 401(a) of the Code, (vi) all material communications with any Governmental Authority (including the Pension Benefit Guaranty Corporation and the IRS) given or received within the last three years, and (vii) a description of all unwritten A Benefit Plans, if any.
(b) To With respect to the Company Benefit Plans, no event has occurred and, to the knowledge of Athe Company, each A there exists no condition or set of circumstances in connection with which the Company or any Company Subsidiary could be subject to any liability under the terms of such Company Benefit Plan Plans, ERISA, the Code or any other applicable Law which has had, or could reasonably be expected to have, a Company Material Adverse Effect. Each of the Company Benefit Plans has been operated and administered in all material respects in accordance with its terms and all contributions required to be made under the terms of any of the A Benefit Plans as of the date hereof have been timely made or have been reflected on A's most recent consolidated balance sheet. All of the A Benefit Plans are in compliance with all applicable requirements of LawLaws promulgated thereunder, including including, but not limited to, ERISA and the Code. Each of the Company Benefit Plans intended to be "qualified" within the meaning of section 401(a) of the Code has received a favorable determination letter as to such qualification from the IRS, except and no event has occurred, either by reason of any action or failure to act, which would cause the extent that loss of any such noncompliance would not have an A Material Adverse Effect.
(c) There are no pending actions, claims qualification. All contributions or lawsuits that have been asserted regarding other amounts payable by the A Benefit Plans directly or, to the knowledge of A, against Company or any fiduciary of any A Benefit Plan Company Subsidiary with respect to their operation (other than routine benefit claims) which could result in liability.
(d) There is no A each Company Benefit Plan that in respect of current or prior plan years have been paid or accrued in accordance with United States generally accepted accounting principles and section 412 of the Code. No Company Benefit Plan is a "multiemployer plan" (within the meaning of SECTION as such term is defined in section 3(37) of ERISA).
(e) Each A Benefit Plan which is or a "group health plan" single employer pension plan (as such term is defined in SECTION 607(1Section 4001(a)(15) of ERISA) is in compliance with SECTION 601 et seq. for which the Company could incur liability under Section 4063 or 4064 of ERISA, . Each of the Health Insurance Portability and Accountability Act and any other applicable federal, state Company Benefit Plans is subject only to the Laws of the United States or local lawa political subdivision thereof.
(fc) Neither A the Company nor any subsidiary of A Company Subsidiary is a party to any collective bargaining or other labor union contract applicable to persons Persons employed by A the Company or any subsidiary of A Company Subsidiary and neither A nor any subsidiary of A is negotiating any no collective bargaining agreementsagreement is being negotiated by the Company or any Company Subsidiary. As of the date hereofof this Agreement, there is no labor dispute, strike or work stoppage against A the Company or any subsidiary of A Company Subsidiary pending or, to the knowledge of Athe Company, threatened in writing which may interfere with the respective business activities of Athe Company or any Company Subsidiary, except where such dispute, strike or work stoppage would has not have an A had, and could not reasonably be expected to have, a Company Material Adverse Effect. As of the date hereofof this Agreement, to the knowledge of Athe Company, none neither of A or the Company, any subsidiary Company Subsidiary, nor any of A or their respective representatives or employees, employees has committed any unfair labor practices in connection with the operation of the business of A the Company or any of its subsidiariesCompany Subsidiary, and there is no charge or complaint against A the Company or any subsidiary of A Company Subsidiary by the National Labor Relations Board or any comparable federal or state agency pending or threatened in writingor, to the knowledge of the Company, threatened, except where such unfair labor practice, charge or complaint would has not have an A had, and could not reasonably be expected to have, a Company Material Adverse Effect.
(gd) A The Company has delivered made available to B true and correct copies Parent prior to the date of this Agreement (i) copies of all employment agreements with officers of A the Company and the subsidiaries of Aeach Company Subsidiary; (ii) copies of all severance plans, agreements, programs and policies of A and the subsidiaries of A Company with or relating to their its employees; and (iii) all plans, programs, agreements and other arrangements intended to satisfy the performance-based exception under SECTION 162(m) copies of the Code; and (iv) all plans, programs, agreements and other arrangements of A and the subsidiaries of A Company with or relating to their respective its employees which that contain change in of control provisions.
(he) Except as required by Law, no A Company Benefit Plan provides, or has liability with respect to, provides retiree medical or other retiree welfare life insurance benefits to any personPerson.
(i) A is not a party to any agreement or arrangement that would result, separately or in the aggregate, in the payment of any "excess parachute payments" within the meaning of SECTION 280G of the Code (disregarding SECTION 280G(b)(4) of the Code).
(j) The consummation of the transactions contemplated by this Agreement will not (i) entitle any current or former employee of A to severance pay, unemployment compensation or any similar payment; (ii) accelerate the time of payment or vesting of, or increase the amount of, any compensation due to any current or former employee of A; (iii) reasonably be expected to result in any "excess parachute payment" under SECTION 280G of the Code; or (iv) result in any material liability to any present or former employee, including as a result of WARN.
(k) A has no material liability, whether absolute or contingent, including any material obligations under any A Benefit Plan, with respect to any misclassification of any person as an independent contractor rather than as an employee, or with respect to any employee leased from another employer.
(l) A has not entered into any transaction with any A Benefit Plan.
(m) In respect of all employees of A (other than A's current Chief Executive Officer and A's current Chief Financial Officer), liabilities of A and its subsidiaries in respect of any (i) severance payments and (ii) payments in respect of the cancellation of outstanding A Options in accordance with SECTION 2.05 hereof, arising in connection with the consummation of the A Merger, shall not exceed $1,300,000 in the aggregate.
(n) SECTION 4.10(n) of the A Disclosure Schedule sets forth (i) a true and correct list of all individuals who would be entitled to severance payments pursuant to an individual agreement with A or any of its subsidiaries and the amount of cash severance payments to which each such person would be entitled and (ii) with respect to any formal or informal severance program, plan or arrangement of A or any of its subsidiaries that does not involve an individual agreement between A or any of its subsidiaries and any individual, (A) a brief written description of such program, plan or arrangement and (B) the number of individuals entitled to severance benefits under such program, plan or arrangement.
(o) To the knowledge of A based on a good faith interpretation of the Stabilization Act, (i) except as set forth in SECTION 4.10(o) of the A Disclosure Schedule, no A employee's or officer's total compensation (within the meaning of the Stabilization Act) exceeded $300,000 in calendar year 2000 and (ii) with respect to any persons so identified pursuant to clause (i), A has not made or promised to make any payments or taken any action which may adversely affect the Company's ability to obtain a Federal credit instrument under SECTION 101(a)(1) of the Stabilization Act.
Appears in 1 contract
Employee Benefit Plans; Labor Matters. (ai) With respect to each employee benefit plan, policy, commitment, program, arrangement and contract (including, without limitation, any "employee benefit plan, ," as defined in SECTION Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") and any bonus, sponsoreddeferred compensation, stock bonus, stock purchase, restricted stock, stock option, employment, termination, change in control and severance plan, program, arrangement and contract), to which MCI or any of its Subsidiaries is a party, which is maintained or contributed to, to by MCI or to which there is an obligation to contribute, by Aany of its Subsidiaries, or with respect to which A MCI or any of its Subsidiaries could incur material liability under Title IV of ERISA, including, but not limited to, SECTION Section 4069, 4201 or 4212(c) or 4204 of ERISA (the "A BENEFIT PLANSMCI Benefit Plans"), A MCI has delivered or made available to B and the Company BT a true and correct complete copy of (iA) the most recent summary plan description related to each A Benefit Plan and all amendments thereto for which a summary plan description is required, (ii) each trust agreement relating to such MCI Benefit Plan, (iiiB) the most recent annual report (Form 5500) filed with the Internal Revenue Service (the "IRS"), (ivC) each trust or other funding arrangement relating to such MCI Benefit Plan, (D) the most recent summary plan description related to each MCI Benefit Plan for which a summary plan description is required, (E) the most recent actuarial report and/or financial statement, (if any, applicable) relating to an A MCI Benefit Plan, Plan and (vF) the most recent determination letter, if any, issued by the IRS with respect to any A MCI Benefit Plan qualified under SECTION Section 401(a) of the Code, .
(viii) all material communications with any Governmental Authority (including Each of the Pension MCI Benefit Guaranty Corporation Plans that is an "employee pension benefit plan" within the meaning of Section 3(2) of ERISA and that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter from the IRS) given or received within the last three years, and MCI is not aware of any circumstances likely to result in the revocation of any such favorable determination letter that would have a Material Adverse Effect on MCI.
(viiiii) a description of all unwritten A With respect to the MCI Benefit Plans, if any.
(b) To the knowledge of A, each A Benefit Plan no event has been administered in all material respects in accordance with its terms and all contributions required to be made under the terms of any of the A Benefit Plans as of the date hereof have been timely made or have been reflected on A's most recent consolidated balance sheet. All of the A Benefit Plans are in compliance with all applicable requirements of Law, including ERISA and the Code, except to the extent that any such noncompliance would not have an A Material Adverse Effect.
(c) There are no pending actions, claims or lawsuits that have been asserted regarding the A Benefit Plans directly oroccurred and, to the knowledge of AMCI, against there exists no condition or set of circumstances, in connection with which MCI or any fiduciary of its Subsidiaries could be subject to any A liability under the terms of such MCI Benefit Plan with respect to their operation (Plans, ERISA, the Code or any other than routine benefit claims) which could result applicable law which, individually or in liabilitythe aggregate, would have a Material Adverse Effect on MCI.
(div) There is no A Benefit Plan that is a "multiemployer plan" (within the meaning of SECTION 3(37) of ERISA).
(e) Each A Benefit Plan which is a "group health plan" (as defined in SECTION 607(1) of ERISA) is in compliance with SECTION 601 et seq. of ERISA, the Health Insurance Portability and Accountability Act and any other applicable federal, state or local law.
(f) Neither A nor any subsidiary of A is a party MCI has made available to any BT all collective bargaining or other labor union contract contracts to which MCI or any of its Subsidiaries is a party applicable to persons employed by A MCI or any subsidiary of A its Subsidiaries and neither A nor any subsidiary of A is negotiating any no collective bargaining agreementsagreement is being negotiated by MCI or any of its Subsidiaries. As of the date hereof, there There is no pending or threatened in writing labor dispute, strike or work stoppage against A MCI or any subsidiary of A pending or, to the knowledge of A, threatened in writing its Subsidiaries which may interfere with the respective business activities of AMCI or any of its Subsidiaries, except where such dispute, strike or work stoppage would not have an A Material Adverse Effect. As of the date hereof, to the knowledge of A, none of A or any subsidiary of A or their respective representatives or employees, has committed any unfair labor practices in connection with the operation of the business of A or any of its subsidiaries, and there is no charge or complaint against A or any subsidiary of A by the National Labor Relations Board or any comparable federal or state agency pending or threatened in writing, except where such unfair labor practice, charge or complaint would not have an A Material Adverse Effect.
(g) A has delivered to B true and correct copies of (i) all employment agreements with officers of A and the subsidiaries of A; (ii) all severance plans, agreements, programs and policies of A and the subsidiaries of A with or relating to their employees; (iii) all plans, programs, agreements and other arrangements intended to satisfy the performance-based exception under SECTION 162(m) of the Code; and (iv) all plans, programs, agreements and other arrangements of A and the subsidiaries of A with or relating to their respective employees which contain change in control provisions.
(h) Except as required by Law, no A Benefit Plan provides, or has liability with respect to, retiree medical or other retiree welfare benefits to any person.
(i) A is not a party to any agreement or arrangement that would result, separately or in the aggregate, in the payment of any "excess parachute payments" within the meaning of SECTION 280G of the Code (disregarding SECTION 280G(b)(4) of the Code).
(j) The consummation of the transactions contemplated by this Agreement will not (i) entitle any current or former employee of A to severance pay, unemployment compensation or any similar payment; (ii) accelerate the time of payment or vesting of, or increase the amount of, any compensation due to any current or former employee of A; (iii) reasonably be expected to result in any "excess parachute payment" under SECTION 280G of the Code; or (iv) result in any material liability to any present or former employee, including as a result of WARN.
(k) A has no material liability, whether absolute or contingent, including any material obligations under any A Benefit Plan, with respect to any misclassification of any person as an independent contractor rather than as an employee, or with respect to any employee leased from another employer.
(l) A has not entered into any transaction with any A Benefit Plan.
(m) In respect of all employees of A (other than A's current Chief Executive Officer and A's current Chief Financial Officer), liabilities of A and its subsidiaries in respect of any (i) severance payments and (ii) payments in respect of the cancellation of outstanding A Options in accordance with SECTION 2.05 hereof, arising in connection with the consummation of the A Merger, shall not exceed $1,300,000 in the aggregate.
(n) SECTION 4.10(n) of the A Disclosure Schedule sets forth (i) a true and correct list of all individuals who would be entitled to severance payments pursuant to an individual agreement with A or any of its subsidiaries and the amount of cash severance payments to which each such person would be entitled and (ii) with respect to any formal or informal severance program, plan or arrangement of A or any of its subsidiaries that does not involve an individual agreement between A or any of its subsidiaries and any individual, (A) a brief written description of such program, plan or arrangement and (B) the number of individuals entitled to severance benefits under such program, plan or arrangement.
(o) To the knowledge of A based on a good faith interpretation of the Stabilization Act, (i) except as set forth in SECTION 4.10(o) of the A Disclosure Schedule, no A employee's or officer's total compensation (within the meaning of the Stabilization Act) exceeded $300,000 in calendar year 2000 and (ii) with respect to any persons so identified pursuant to clause (i), A has not made or promised to make any payments or taken any action which may adversely affect the Company's ability to obtain a Federal credit instrument under SECTION 101(a)(1) of the Stabilization Act.Material
Appears in 1 contract
Employee Benefit Plans; Labor Matters. (a) Schedule 4.11 lists or describes any pension, retirement, savings, disability, medical, dental, health, life (including any individual life insurance policy as to which EnSys is the owner, beneficiary or both), death benefit, group insurance, profit sharing, deferred compensation, stock option, bonus incentive, vacation pay, severance pay, "cafeteria" or "flexible benefit" plan under Section 125 of the Code, or other employee benefit plan, trust, arrangement, contract, agreement, policy or commitment, under which employees of EnSys or its Subsidiaries are entitled to participate by reason of their, or relating to, employment with EnSys or its Subsidiaries (other than relating to "at-will" employment), (i) to which EnSys or a Subsidiary is a party or a sponsor or a fiduciary thereof or (ii) with respect to which EnSys or a Subsidiary has made payments, contributions or commitments, or has any liability (collectively, the "EnSys Employee Benefit Plans"). With respect to each employee benefit planEnSys Employee Benefit Plan listed on Schedule 4.11, policy, commitment, program, arrangement and contract (including, without limitation, any employee benefit plan, as defined in SECTION 3(3) of ERISA, sponsored, maintained or contributed to, or EnSys has to which there is an obligation the extent applicable provided to contribute, by A, or with respect to which A could incur liability under Title IV of ERISA, including, but not limited to, SECTION 4069, 4212(c) or 4204 of ERISA (the "A BENEFIT PLANS"), A has delivered or made available to B and the Company a SDI true and correct copy complete copies of (iA) the plan document, trust agreement and any other contractual document governing such Plan, (B) the summary plan description, (C) all Form 5500 annual reports and attachments, and (D) the most recent summary plan description related to each A Benefit Plan and all amendments thereto for which a summary plan description is required, (ii) each trust agreement relating to such Benefit Plan, (iii) the most recent annual report (Form 5500) filed with the IRS, (iv) the most recent actuarial report and/or financial statement, if any, relating to an A Benefit Plan, (v) the most recent IRS determination letter, if any, issued by the IRS with respect to any A Benefit Plan qualified under SECTION 401(a) of the Code, (vi) all material communications with any Governmental Authority (including the Pension Benefit Guaranty Corporation and the IRS) given or received within the last three years, and (vii) a description of all unwritten A Benefit Plans, if any.
(b) To the knowledge of A, each A EnSys Employee Benefit Plan has Plans have been operated and administered by EnSys in compliance in all material respects in accordance with its their respective terms and all contributions required applicable United States and state laws relating to be made under the terms of any of the A Benefit Plans as of the date hereof have been timely made employment or have been reflected on A's most recent consolidated balance sheet. All of the A Benefit Plans are in compliance with all applicable requirements of Lawlabor matters, including without limitation, ERISA and the Code, except to the extent that any such noncompliance would not have an A Material Adverse Effect.
(c) There are no pending actions, claims or lawsuits that have been asserted regarding the A Benefit Plans directly or, to the knowledge of A, against any fiduciary of any A Each EnSys Employee Benefit Plan that is intended to be tax qualified under Section 401(a) of the Code has received, or EnSys has applied for, a favorable determination letter from the IRS stating that the Plan meets the requirements of the Code and that any trust or trusts associated with respect to their operation (other than routine benefit claimsthe plan are tax exempt under Section 501(a) which could result in liabilityof the Code.
(d) There is no A Benefit Plan that is a "multiemployer plan" (EnSys does not maintain any defined benefit plan covering employees of EnSys or its Subsidiaries within the meaning of SECTION 3(37Section 3(35) of ERISA).
(e) Each A Benefit Plan which is a "group health plan" (as defined in SECTION 607(1) of ERISA) is in compliance with SECTION 601 et seq. of ERISA, the Health Insurance Portability and Accountability Act and any other applicable federal, state or local law.
(f) Neither A EnSys nor any subsidiary of A its Subsidiaries is a party to any collective bargaining or other labor union contract contract.
(f) All contributions and payments of insurance premiums required to be made with respect to EnSys Employee Benefit Plans have been made when due.
(g) Except as set forth on Schedule 4.11, the reporting and disclosure requirements of ERISA applicable to persons employed by A EnSys Employee Benefit Plans, and the continuation coverage requirements of Code Section 4980B and ERISA Sections 601-609 applicable to EnSys Employee Benefit Plans, have been complied with in all material respects.
(h) There have been no "prohibited transactions" within the meaning of Code Section 4975 or ERISA Section 406 with respect to EnSys Employee Benefit Plans that could subject EnSys, the Surviving Corporation, SDI or any subsidiary of A and neither A nor their respective Subsidiaries to any subsidiary of A is negotiating any collective bargaining agreements. As of tax, penalty or other liability under Code Section 4975 or under ERISA Sections 409 or 502(i).
(i) There are no actions, suits or claims with respect to EnSys Employee Benefit Plans (other than routine claims for benefits in the date hereof, there is no labor dispute, strike or work stoppage against A or any subsidiary of A ordinary course) pending or, to the knowledge of AEnSys, threatened in writing which may interfere with the business activities of Athreatened, except where such dispute, strike or work stoppage would not have an A Material Adverse Effect. As of the date hereof, and to the knowledge of AEnSys, none of A or any subsidiary of A or their respective representatives or employees, has committed any unfair labor practices in connection with the operation of the business of A or any of its subsidiaries, and there is are no charge or complaint against A or any subsidiary of A by the National Labor Relations Board or any comparable federal or state agency pending or threatened in writing, except where such unfair labor practice, charge or complaint would not have an A Material Adverse Effect.
(g) A has delivered to B true and correct copies of (i) all employment agreements with officers of A and the subsidiaries of A; (ii) all severance plans, agreements, programs and policies of A and the subsidiaries of A with or relating to their employees; (iii) all plans, programs, agreements and other arrangements intended to satisfy the performance-based exception under SECTION 162(m) of the Code; and (iv) all plans, programs, agreements and other arrangements of A and the subsidiaries of A with or relating to their respective employees facts which contain change in control provisions.
(h) Except as required by Law, no A Benefit Plan provides, or has liability with respect to, retiree medical or other retiree welfare benefits could give rise to any person.
such actions, suits or claims (i) A is not a party to any agreement or arrangement that would result, separately or other than routine claims for benefits in the aggregate, in the payment of any "excess parachute payments" within the meaning of SECTION 280G of the Code (disregarding SECTION 280G(b)(4) of the Codeordinary course).
(j) The Neither EnSys nor any other entity included in the same controlled group of organizations as EnSys within the meaning of Code Sections 414(b), (c), (m) or (o) has ever sponsored, maintained or contributed to, or been obligated to contribute to, any employee benefit plan subject to Title IV of ERISA or the minimum funding requirements of Code Section 412.
(k) Except as set forth on Schedule 4.11, the execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement will hereunder shall not (i) entitle any current or former employee of A to severance pay, unemployment compensation or any similar payment; (ii) accelerate the time of payment or vesting of, or increase the amount of, any compensation due to any current or former employee of A; (iii) reasonably be expected to result in any "excess parachute payment" under SECTION 280G increase in or acceleration of the Code; any obligation or liability (iv) result in any material liability to any present or former employee, including as a result of WARN.
(k) A has no material liability, whether absolute or contingent, including any material obligations under any A Benefit Plan, with respect to any misclassification of any person as an independent contractor rather than as an employee, accrued benefits or with respect to any employee leased from another employer.
(l) A has not entered into any transaction with any A Benefit Plan.
(m) In respect of all employees of A (other than A's current Chief Executive Officer and A's current Chief Financial Officer), liabilities of A and its subsidiaries in respect of any (i) severance payments and (ii) payments in respect of the cancellation of outstanding A Options in accordance with SECTION 2.05 hereof, arising in connection with the consummation of the A Merger, shall not exceed $1,300,000 in the aggregate.
(n) SECTION 4.10(n) of the A Disclosure Schedule sets forth (i) a true and correct list of all individuals who would be entitled to severance payments pursuant to an individual agreement with A or any of its subsidiaries and the amount of cash severance payments to which each such person would be entitled and (iiotherwise) with respect to any formal EnSys Employee Benefit Plan or informal severance program, plan to any employee or arrangement former employee of A EnSys or any of its subsidiaries that does not involve an individual agreement between A or any of its subsidiaries and any individual, (A) a brief written description of such program, plan or arrangement and (B) the number of individuals entitled to severance benefits under such program, plan or arrangementSubsidiaries.
(o) To the knowledge of A based on a good faith interpretation of the Stabilization Act, (i) except as set forth in SECTION 4.10(o) of the A Disclosure Schedule, no A employee's or officer's total compensation (within the meaning of the Stabilization Act) exceeded $300,000 in calendar year 2000 and (ii) with respect to any persons so identified pursuant to clause (i), A has not made or promised to make any payments or taken any action which may adversely affect the Company's ability to obtain a Federal credit instrument under SECTION 101(a)(1) of the Stabilization Act.
Appears in 1 contract
Samples: Merger Agreement (Ensys Environmental Products Inc /De/)
Employee Benefit Plans; Labor Matters. (a) With respect to each employee benefit plan, policy, commitment, program, arrangement and contract (including, without limitation, any "employee benefit plan", as defined in SECTION Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA, sponsored, ")) maintained or contributed to, to by the Company or to which there is an obligation to contribute, by Aany Company Subsidiary, or with respect to which A the Company or any Company Subsidiary (in each case, other than WME and NSC) could incur liability under Title IV of ERISA, including, but not limited to, SECTION Section 4069, 4212(c) or 4204 of ERISA (the "A BENEFIT PLANSCompany Benefit Plans"), A the Company has delivered (or made available will, within 15 days of the date hereof, deliver) to B and the Company Parent a true and correct copy of (i) such Company Benefit Plan and the most recent summary plan description related to each A Company Benefit Plan and all amendments thereto for which a summary plan description is required, (ii) each trust agreement or other funding arrangement relating to such Company Benefit Plan, (iii) the most recent annual report (Form 5500) filed with the Internal Revenue Service (the "IRS"), (iv) the most recent actuarial report and/or or financial statement, if any, statement relating to an A a Company Benefit Plan, Plan and (v) the most recent determination letter, if any, letter issued by the IRS with respect to any A Company Benefit Plan qualified under SECTION Section 401(a) of the Code, (vi) all material communications with any Governmental Authority (including the Pension Benefit Guaranty Corporation and the IRS) given or received within the last three years, and (vii) a description of all unwritten A Benefit Plans, if any.
(b) To the knowledge of A, each A Each Company Benefit Plan has been administered in all material respects in accordance with its terms and all contributions required to be made under the terms of any of the A Company Benefit Plans as of the date hereof of this Agreement have been timely made or have been reflected on A's the most recent consolidated balance sheet. All of sheet filed or incorporated by reference in the A Benefit Plans are in compliance with all applicable requirements of Law, including ERISA and the Code, except Company Reports prior to the extent that any such noncompliance would not have an A Material Adverse Effect.
(c) There are no pending actions, claims or lawsuits that have been asserted regarding the A Benefit Plans directly or, to the knowledge date of A, against any fiduciary of any A Benefit Plan with respect to their operation (other than routine benefit claims) which could result this Agreement. Except as set forth in liability.
(d) There is no A Benefit Plan that is a "multiemployer plan" (within the meaning of SECTION 3(37) of ERISA).
(e) Each A Benefit Plan which is a "group health plan" (as defined in SECTION 607(1) of ERISA) is in compliance with SECTION 601 et seq. of ERISA, the Health Insurance Portability and Accountability Act and any other applicable federal, state or local law.
(f) Neither A nor any subsidiary of A is a party to any collective bargaining or other labor union contract applicable to persons employed by A or any subsidiary of A and neither A nor any subsidiary of A is negotiating any collective bargaining agreements. As of the date hereof, there is no labor dispute, strike or work stoppage against A or any subsidiary of A pending or, to the knowledge of A, threatened in writing which may interfere with the business activities of A, except where such dispute, strike or work stoppage would not have an A Material Adverse Effect. As of the date hereof, to the knowledge of A, none of A or any subsidiary of A or their respective representatives or employees, has committed any unfair labor practices in connection with the operation of the business of A or any of its subsidiaries, and there is no charge or complaint against A or any subsidiary of A by the National Labor Relations Board or any comparable federal or state agency pending or threatened in writing, except where such unfair labor practice, charge or complaint would not have an A Material Adverse Effect.
(g) A has delivered to B true and correct copies of (i) all employment agreements with officers of A and the subsidiaries of A; (ii) all severance plans, agreements, programs and policies of A and the subsidiaries of A with or relating to their employees; (iii) all plans, programs, agreements and other arrangements intended to satisfy the performance-based exception under SECTION 162(mSection 3.09(b) of the Code; and (iv) all plans, programs, agreements and other arrangements of A and the subsidiaries of A with or relating to their respective employees which contain change in control provisions.
(h) Except as required by Law, no A Benefit Plan provides, or has liability with respect to, retiree medical or other retiree welfare benefits to any person.
(i) A is not a party to any agreement or arrangement that would result, separately or in the aggregate, in the payment of any "excess parachute payments" within the meaning of SECTION 280G of the Code (disregarding SECTION 280G(b)(4) of the Code).
(j) The consummation of the transactions contemplated by this Agreement will not (i) entitle any current or former employee of A to severance pay, unemployment compensation or any similar payment; (ii) accelerate the time of payment or vesting of, or increase the amount of, any compensation due to any current or former employee of A; (iii) reasonably be expected to result in any "excess parachute payment" under SECTION 280G of the Code; or (iv) result in any material liability to any present or former employee, including as a result of WARN.
(k) A has no material liability, whether absolute or contingent, including any material obligations under any A Benefit PlanCompany Disclosure Schedule, with respect to any misclassification of any person as an independent contractor rather than as an employee, or with respect to any employee leased from another employer.
(l) A has not entered into any transaction with any A Benefit Plan.
(m) In respect of all employees of A (other than A's current Chief Executive Officer and A's current Chief Financial Officer), liabilities of A and its subsidiaries in respect of any (i) severance payments and (ii) payments in respect of the cancellation of outstanding A Options in accordance with SECTION 2.05 hereof, arising in connection with the consummation of the A Merger, shall not exceed $1,300,000 in the aggregate.
(n) SECTION 4.10(n) of the A Disclosure Schedule sets forth (i) a true and correct list of all individuals who would be entitled to severance payments pursuant to an individual agreement with A or any of its subsidiaries and the amount of cash severance payments to which each such person would be entitled and (ii) with respect to any formal or informal severance program, plan or arrangement of A or any of its subsidiaries that does not involve an individual agreement between A or any of its subsidiaries and any individual, (A) a brief written description of such program, plan or arrangement and (B) the number of individuals entitled to severance benefits under such program, plan or arrangement.
(o) To the knowledge of A based on a good faith interpretation of the Stabilization Act, (i) except as set forth in SECTION 4.10(o) of the A Disclosure Schedule, no A employee's or officer's total compensation (within the meaning of the Stabilization Act) exceeded $300,000 in calendar year 2000 and (ii) with respect to any persons so identified pursuant to clause (i), A has not made or promised to make any payments or taken any action which may adversely affect the Company's ability to obtain a Federal credit instrument under SECTION 101(a)(1) of the Stabilization Act.Company Benefit
Appears in 1 contract
Employee Benefit Plans; Labor Matters. (a) With respect to each employee benefit plan, policy, commitment, program, arrangement and contract (including, without limitation, any employee benefit plan, as defined in SECTION Section 3(3) of ERISA, sponsored, maintained or contributed to, or to which there is an obligation to contribute, by A, or with respect to which A could incur liability under Title IV of ERISA, including, but not limited to, SECTION Section 4069, 4212(c) or 4204 of ERISA (the "A BENEFIT PLANSBenefit Plans "), A has delivered or made available to B and the Company a true and correct copy of (i) the most recent summary plan description related to each A Benefit Plan and all amendments thereto for which a summary plan description is required, (ii) each trust agreement relating to such Benefit Plan, (iii) the most recent annual report (Form 5500) filed with the IRS, (iv) the most recent actuarial report and/or financial statement, if any, relating to an A Benefit Plan, (v) the most recent determination letter, if any, issued by the IRS with respect to any A Benefit Plan qualified under SECTION Section 401(a) of the Code, (vi) all material communications with any Governmental Authority (including the Pension Benefit Guaranty Corporation and the IRS) given or received within the last three years, and (vii) a description of all unwritten A Benefit Plans, if any.
(b) To the knowledge of A, each A Benefit Plan has been administered in all material respects in accordance with its terms and all contributions required to be made under the terms of any of the A Benefit Plans as of the date hereof have been timely made or have been reflected on A's most recent consolidated balance sheet. All of the A Benefit Plans are in compliance with all applicable requirements of Law, including ERISA and the Code, except to the extent that any such noncompliance would not have an A Material Adverse Effect.
(c) There are no pending actions, claims or lawsuits that have been asserted regarding the A Benefit Plans directly or, to the knowledge of A, against any fiduciary of any A Benefit Plan with respect to their operation (other than routine benefit claims) which could result in liability.
(d) There is no A Benefit Plan that is a "multiemployer plan" (within the meaning of SECTION Section 3(37) of ERISA).
(e) Each A Benefit Plan which is a "group health plan" (as defined in SECTION Section 607(1) of ERISA) is in compliance with SECTION Section 601 et seq. of ERISA, the Health Insurance Portability and Accountability Act and any other applicable federal, state or local law.
(f) Neither A nor any subsidiary of A is a party to any collective bargaining or other labor union contract applicable to persons employed by A or any subsidiary of A and neither A nor any subsidiary of A is negotiating any collective bargaining agreements. As of the date hereof, there is no labor dispute, strike or work stoppage against A or any subsidiary of A pending or, to the knowledge of A, threatened in writing which may interfere with the business activities of A, except where such dispute, strike or work stoppage would not have an A Material Adverse Effect. As of the date hereof, to the knowledge of A, none of A or any subsidiary of A or their respective representatives or employees, has committed any unfair labor practices in connection with the operation of the business of A or any of its subsidiaries, and there is no charge or complaint against A or any subsidiary of A by the National Labor Relations Board or any comparable federal or state agency pending or threatened in writing, except where such unfair labor practice, charge or complaint would not have an A Material Adverse Effect.
(g) A has delivered to B true and correct copies of (i) all employment agreements with officers of A and the subsidiaries of A; (ii) all severance plans, agreements, programs and policies of A and the subsidiaries of A with or relating to their employees; (iii) all plans, programs, agreements and other arrangements intended to satisfy the performance-based exception under SECTION Section 162(m) of the Code; and (iv) all plans, programs, agreements and other arrangements of A and the subsidiaries of A with or relating to their respective employees which contain change in control provisions.
(h) Except as required by Law, no A Benefit Plan provides, or has liability with respect to, retiree medical or other retiree welfare benefits to any person.
(i) A is not a party to any agreement or arrangement that would result, separately or in the aggregate, in the payment of any "excess parachute payments" within the meaning of SECTION Section 280G of the Code (disregarding SECTION Section 280G(b)(4) of the Code).
(j) The consummation of the transactions contemplated by this Agreement will not (i) entitle any current or former employee of A to severance pay, unemployment compensation or any similar payment; (ii) accelerate the time of payment or vesting of, or increase the amount of, any compensation due to any current or former employee of A; (iii) reasonably be expected to result in any "excess parachute payment" under SECTION Section 280G of the Code; or (iv) result in any material liability to any present or former employee, including as a result of WARN.
(k) A has no material liability, whether absolute or contingent, including any material obligations under any A Benefit Plan, with respect to any misclassification of any person as an independent contractor rather than as an employee, or with respect to any employee leased from another employer.
(l) A has not entered into any transaction with any A Benefit Plan.
(m) In respect of all employees of A (other than A's current Chief Executive Officer and A's current Chief Financial Officer), liabilities of A and its subsidiaries in respect of any (i) severance payments and (ii) payments in respect of the cancellation of outstanding A Options in accordance with SECTION Section 2.05 hereof, arising in connection with the consummation of the A Merger, shall not exceed $1,300,000 in the aggregate.
(n) SECTION Section 4.10(n) of the A Disclosure Schedule sets forth (i) a true and correct list of all individuals who would be entitled to severance payments pursuant to an individual agreement with A or any of its subsidiaries and the amount of cash severance payments to which each such person would be entitled and (ii) with respect to any formal or informal severance program, plan or arrangement of A or any of its subsidiaries that does not involve an individual agreement between A or any of its subsidiaries and any individual, (A) a brief written description of such program, plan or arrangement and (B) the number of individuals entitled to severance benefits under such program, plan or arrangement.
(o) To the knowledge of A based on a good faith interpretation of the Stabilization Act, (i) except as set forth in SECTION Section 4.10(o) of the A Disclosure Schedule, no A employee's or officer's total compensation (within the meaning of the Stabilization Act) exceeded $300,000 in calendar year 2000 and (ii) with respect to any persons so identified pursuant to clause (i), A has not made or promised to make any payments or taken any action which may adversely affect the Company's ability to obtain a Federal credit instrument under SECTION Section 101(a)(1) of the Stabilization Act.
Appears in 1 contract
Employee Benefit Plans; Labor Matters. (a) Section 4.9(a) of the Company Disclosure Statement sets forth a true and complete list as of the date of this Agreement of each material employee benefit plan as defined in section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA"), maintained by the Company or any of its Subsidiaries (the "Company Benefit Plans"). With respect to each employee benefit planCompany Benefit Plan, policy, commitment, program, arrangement and contract (including, without limitation, any employee benefit plan, as defined in SECTION 3(3) of ERISA, sponsored, maintained or contributed to, or to which there is an obligation to contribute, by A, or with respect to which A could incur liability under Title IV of ERISA, including, but not limited to, SECTION 4069, 4212(c) or 4204 of ERISA (the "A BENEFIT PLANS"), A Company has heretofore delivered or made will deliver or make available to B Tribune within 30 days of the date of this Agreement a true, correct and the Company a true and correct complete copy of of: (i) each Company Benefit Plan, including all plan documents, trust agreements, and insurance contracts and other funding vehicles; (ii) the most recent summary plan description related to each A Benefit Plan Annual Report (Form 5500 Series) and all amendments thereto for which a summary plan description is requiredaccompanying schedule, (ii) each trust agreement relating to such Benefit Plan, if any; (iii) the most recent annual report current summary plan description and any material modifications thereto, if any (Form 5500) filed with the IRSin each case, whether or not required to be furnished under ERISA); (iv) the most recent actuarial report and/or annual financial statementreport, if any, relating to an A Benefit Plan, ; (v) the most recent determination letteractuarial report, if any; and (vi) the most recent determination letter from the Internal Revenue Service (the "IRS"), issued by if any. Except as provided in the IRS with foregoing documents delivered to Tribune and except as provided in Section 4.9(a) of the Company Disclosure Statement, there are no amendments to any Company Benefit Plan that have been adopted or approved nor has the Company or any Company Subsidiary undertaken to make any such amendments or to adopt or approve any new Plan which would reasonably be expected to have a material impact on the liabilities of the Company Benefit Plan.
(b) With respect to any A each Company Benefit Plan qualified under SECTION 401(a) which is subject to Title IV of ERISA, or Section 302 of ERISA or Section 412 or 4971 of the Code, (vii) all material communications with any Governmental Authority (including the Pension present value of accrued benefits under such Company Benefit Guaranty Corporation and Plan, based upon the IRS) given or received within actuarial assumptions used for funding purposes in the last three years, and (vii) a description of all unwritten A Benefit Plans, if any.
(b) To the knowledge of A, each A Benefit Plan has been administered in all material respects in accordance with its terms and all contributions required to be made under the terms of any of the A Benefit Plans as of the date hereof have been timely made or have been reflected on A's most recent consolidated balance sheet. All of the A actuarial report prepared by such Company Benefit Plans are in compliance with all applicable requirements of Law, including ERISA and the Code, except to the extent that any such noncompliance would not have an A Material Adverse Effect.
(c) There are no pending actions, claims or lawsuits that have been asserted regarding the A Benefit Plans directly or, to the knowledge of A, against any fiduciary of any A Benefit Plan Plan's actuary with respect to their operation (other than routine benefit claims) which could result in liability.
(d) There is no A such Company Benefit Plan, did not, as of its latest valuation date, exceed the then current value of the assets of such Company Benefit Plan that allocable to such accrued benefits except with respect to one employee pension benefit plan maintained by a Subsidiary of the Company, in which case such excess is a not greater than $10 million, (ii) no "multiemployer planreportable event" (within the meaning of SECTION 3(37) of ERISA).
(e) Each A Benefit Plan which is a "group health plan" (as defined in SECTION 607(1) Section 4043 of ERISA) is in compliance has occurred with SECTION 601 et seq. respect to any Company Benefit Plan for which the 30-day notice requirement has not been waived, (iii) there does not exist any accumulated funding deficiency within the meaning of Section 412 of the Code or Section 302 of ERISA, the Health Insurance Portability and Accountability Act and any other applicable federalwhether or not waived, state or local law.
(fiv) Neither A nor any subsidiary of A is a party to any collective bargaining or other labor union contract applicable to persons employed by A or any subsidiary of A and neither A nor any subsidiary of A is negotiating any collective bargaining agreements. As of the date hereof, there is no labor dispute, strike or work stoppage against A or any subsidiary of A pending or, all premiums to the knowledge of APension Benefit Guaranty Corporation ("PBGC") have been timely paid in full, threatened in writing which may interfere with the business activities of A, except where such dispute, strike or work stoppage would not have an A Material Adverse Effect. As of the date hereof, (v) no liability (other than for premiums to the knowledge PBGC) under Title IV of A, none of A ERISA has been or any subsidiary of A or their respective representatives or employees, has committed any unfair labor practices in connection with is reasonably expected to be incurred by the operation of the business of A Company or any of its subsidiariesSubsidiaries and (vi) the PBGC has not instituted proceedings to terminate any such Company Benefit Plan and, and there is to the Company's knowledge, no charge condition exists that presents a risk that such proceedings will be instituted or complaint against A which would constitute grounds under Section 4042 of ERISA for the termination of, or the appointment of a trustee to administer, any subsidiary of A by the National Labor Relations Board or any comparable federal or state agency pending or threatened in writingsuch Company Benefit Plan, except where such unfair labor practice, charge or complaint would not have an A Material Adverse Effect.
(g) A has delivered to B true and correct copies the failure of (i) all employment agreements with officers of A and the subsidiaries of A; (ii) all severance plans, agreements, programs and policies of A and the subsidiaries of A with or relating to their employees; (iii) all plans, programs, agreements and other arrangements intended to satisfy the performance-based exception under SECTION 162(m) any of the Code; and (iv) all plansforegoing to be true would not, programs, agreements and other arrangements of A and the subsidiaries of A with or relating to their respective employees which contain change in control provisions.
(h) Except as required by Law, no A Benefit Plan provides, or has liability with respect to, retiree medical or other retiree welfare benefits to any person.
(i) A is not a party to any agreement or arrangement that would result, separately individually or in the aggregate, in the payment of any "excess parachute payments" within the meaning of SECTION 280G of the Code (disregarding SECTION 280G(b)(4) of the Code).
(j) The consummation of the transactions contemplated by this Agreement will not (i) entitle any current or former employee of A to severance pay, unemployment compensation or any similar payment; (ii) accelerate the time of payment or vesting of, or increase the amount of, any compensation due to any current or former employee of A; (iii) reasonably be expected to result in any "excess parachute payment" under SECTION 280G of have a Material Adverse Effect on the Code; Company or (iv) result in any material liability to any present prevent or former employee, including as a result of WARN.
(k) A has no material liability, whether absolute or contingent, including any material obligations under any A Benefit Plan, with respect to any misclassification of any person as an independent contractor rather than as an employee, or with respect to any employee leased from another employer.
(l) A has not entered into any transaction with any A Benefit Plan.
(m) In respect of all employees of A (other than A's current Chief Executive Officer and A's current Chief Financial Officer), liabilities of A and its subsidiaries in respect of any (i) severance payments and (ii) payments in respect of the cancellation of outstanding A Options in accordance with SECTION 2.05 hereof, arising in connection with materially delay the consummation of the A Offer or the Merger, shall not exceed $1,300,000 in the aggregate.
(n) SECTION 4.10(n) of the A Disclosure Schedule sets forth (i) a true and correct list of all individuals who would be entitled to severance payments pursuant to an individual agreement with A or any of its subsidiaries and the amount of cash severance payments to which each such person would be entitled and (ii) with respect to any formal or informal severance program, plan or arrangement of A or any of its subsidiaries that does not involve an individual agreement between A or any of its subsidiaries and any individual, (A) a brief written description of such program, plan or arrangement and (B) the number of individuals entitled to severance benefits under such program, plan or arrangement.
(o) To the knowledge of A based on a good faith interpretation of the Stabilization Act, (i) except as set forth in SECTION 4.10(o) of the A Disclosure Schedule, no A employee's or officer's total compensation (within the meaning of the Stabilization Act) exceeded $300,000 in calendar year 2000 and (ii) with respect to any persons so identified pursuant to clause (i), A has not made or promised to make any payments or taken any action which may adversely affect the Company's ability to obtain a Federal credit instrument under SECTION 101(a)(1) of the Stabilization Act.
Appears in 1 contract
Employee Benefit Plans; Labor Matters. (a) With Section 5.17(a) of the Company Disclosure Schedule lists each material Employee Plan, including any (i) Employment Agreement with a Service Provider (other than Employment Agreements terminable at-will without the payment of severance or provision of prior notice) and (ii) any Employee Plan providing any severance, retention or change in control benefits or payments. The Company has made available to Parent with respect to each employee benefit plan, policy, commitment, program, arrangement and contract (including, without limitation, any employee benefit plan, as defined in SECTION 3(3Employee Plan required to be listed on Section 5.17(a) of ERISA, sponsored, maintained or contributed to, or to which there is an obligation to contribute, by A, or with respect to which A could incur liability under Title IV of ERISA, including, but not limited to, SECTION 4069, 4212(c) or 4204 of ERISA (the "A BENEFIT PLANS"), A has delivered or made available to B and the Company Disclosure Schedule, (A) a true copy thereof (or a description, if such plan is not written) and correct copy of all amendments thereto, (iB) the most recent summary plan description and summary of material modifications thereto, (C) the most recently filed IRS Form 5500 and accompanying schedules and attachments thereto for each Employee Plan required to file IRS Forms 5500, (D) the most recently prepared actuarial reports and financial statements, if applicable, (E) all material, non-routine correspondence relating thereto received from or provided to the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any other Governmental Authority during the past three years related to each A Benefit Plan and all amendments thereto for which a summary plan description is required, (ii) each trust agreement relating to such Benefit Employee Plan, (iiiF) all current employee handbooks, (G) all material, non-routine correspondence with any Company Employee regarding any Employee Plan, and (H) the most recent annual report (Form 5500) filed with the IRSIRS determination, (iv) the most recent actuarial report and/or financial statementnotification, if any, relating to an A Benefit Plan, (v) the most recent determination or opinion letter, if any, issued by the IRS received with respect to any A Benefit Plan qualified under SECTION 401(a) of the Code, (vi) all material communications with any Governmental Authority (including the Pension Benefit Guaranty Corporation and the IRS) given or received within the last three years, and (vii) a description of all unwritten A Benefit Plans, if anyapplicable Employee Plan.
(b) To Except as would not, individually or in the knowledge of Aaggregate, each A Benefit Plan has been administered in all material respects in accordance with its terms and all contributions required reasonably be expected to be made under the terms of any of the A Benefit Plans as of the date hereof have been timely made or have been reflected on A's most recent consolidated balance sheet. All of the A Benefit Plans are in compliance with all applicable requirements of Law, including ERISA and the Code, except to the extent that any such noncompliance would not have an A a Company Material Adverse Effect, to the Knowledge of the Company, no current Company Employee or Independent Contractor is a party to, or is otherwise bound in any way by, any Contract that would reasonably be expected to interfere with the performance of such Person’s duties to the Company or its Subsidiaries.
(c) There are no pending actionsThe Company has made available to Parent a true and complete list in all material respects that sets forth, claims or lawsuits that have been asserted regarding the A Benefit Plans directly oras of January 17, 2022: (i) for each Company Employee, such Company Employee’s name (to the knowledge of Aextent permitted by applicable Law), against any fiduciary of any A Benefit Plan with respect to their operation employee identification number, employer, job title, hire date, work location, current base salary or wage or commission rate, annual target bonus opportunity, fringe benefits (other than routine benefit claimsthose available to all similarly-situated Company Employees), whether part-time or full-time, status as exempt or non-exempt under the Fair Labor Standards Act, immigration status, and whether such individual is in active employment or on leave, and if on leave, the nature of such leave and the current date of expected return; and (ii) which could result in liabilityeach current Independent Contractor, including each such Person’s name, location, and consulting or contracting fee.
(d) There is no A Benefit Plan that is Neither the Company nor any of its ERISA Affiliates sponsors, maintains, administers or contributes to (or has any obligation to contribute to) or has any direct or indirect liability with respect to: (i) a "multiemployer “defined benefit plan" ” (within the meaning of SECTION 3(37as defined in Section 3(35) of ERISA).
; (eii) Each A Benefit Plan which is a "group health “multiemployer plan" ” (as defined in SECTION 607(1Sections 4001(a)(3) and 3(37)(A) of ERISA) is in compliance with SECTION 601 et seq. of ERISA, the Health Insurance Portability and Accountability Act and any other applicable federal, state or local law.
(f) Neither A nor any subsidiary of A is a party to any collective bargaining or other labor union contract applicable to persons employed by A or any subsidiary of A and neither A nor any subsidiary of A is negotiating any collective bargaining agreements. As of the date hereof, there is no labor dispute, strike or work stoppage against A or any subsidiary of A pending or, to the knowledge of A, threatened in writing which may interfere with the business activities of A, except where such dispute, strike or work stoppage would not have an A Material Adverse Effect. As of the date hereof, to the knowledge of A, none of A or any subsidiary of A or their respective representatives or employees, has committed any unfair labor practices in connection with the operation of the business of A or any of its subsidiaries, and there is no charge or complaint against A or any subsidiary of A by the National Labor Relations Board or any comparable federal or state agency pending or threatened in writing, except where such unfair labor practice, charge or complaint would not have an A Material Adverse Effect.
(g) A has delivered to B true and correct copies of (i) all employment agreements with officers of A and the subsidiaries of A; (ii) all severance plans, agreements, programs and policies of A and the subsidiaries of A with or relating to their employees); (iii) all plans, programs, agreements and other arrangements intended a pension plan subject to satisfy the performance-based exception under SECTION 162(m) Section 302 or Title IV of ERISA or Section 412 or 4971 of the Code; and (iv) all plans, programs, agreements and other arrangements a multiple employer welfare arrangement (as defined in Section 3(40) of A and the subsidiaries of A with ERISA or relating to their respective employees which contain change applicable state Law); or (v) a “multiple employer plan” (as defined in control provisions.
(h) Except as required by Law, no A Benefit Plan provides, or has liability with respect to, retiree medical or other retiree welfare benefits to any person.
(i) A is not a party to any agreement or arrangement that would result, separately or in the aggregate, in the payment of any "excess parachute payments" within the meaning of SECTION 280G of the Code (disregarding SECTION 280G(b)(4Section 413(c) of the Code).
(e) Each Employee Plan that is intended to be qualified under Section 401(a) of the Code (i) is so qualified, and no event has occurred since the date of such determination that would reasonably be expected to result in the loss of such qualification and (ii) is subject to a currently effective determination letter, or opinion letter on which the Company or applicable Subsidiary that is the plan sponsor is entitled to rely, from the IRS.
(f) Each Employee Plan and each Non-United States Employee Plan has been established, maintained, funded and administered in all material respects in compliance with its terms and with all applicable Law, including ERISA and the Code. Except as would not, individually or in the aggregate, result in material liability to the Company and its Subsidiaries, (i) no Action (other than routine claims for benefits) is pending against or, to the Company’s Knowledge, is threatened against any Employee Plan, (ii) all returns, reports and disclosure statements required to be made under ERISA and the Code with respect to all Employee Plans have been timely filed or delivered, and (iii) neither the Company nor any of its ERISA Affiliates nor, to the Knowledge of the Company, any of their directors, officers, employees or agents, nor any fiduciary, trustee or administrator of any Employee Plan or trust created under any Employee Plan, has engaged in or been a party to any “prohibited transaction” as defined in Section 4975 of the Code and Section 406 of ERISA.
(g) With respect to each Non-United States Employee Plan, the Company has timely made all required contributions in all material respects in accordance with applicable Law and has no actual or contingent material liability to any such Plans that have not been satisfied in full or properly accrued.
(h) No asset of any Employee Plan intended to be qualified under Section 401(a) of the Code consists of Company securities (within the meaning of Section 407(d)(1) of ERISA).
(i) No Employee Plan provides or promises, and neither the Company nor any of its Subsidiaries have promised to provide in the future, any post-employment health, medical, dental, disability, hospitalization, life or similar benefits (whether insured or self-insured) to any current or former Service Provider (other than (i) as required by applicable Law, (ii) coverage through the end of the month of employment termination in accordance with the terms of the Employee Plan or (iii) under an Employment Agreement with respect to continued healthcare coverage at Company expenses).
(j) The All contributions, premiums and payments that are due have been made in all material respects for each Employee Plan within the time periods prescribed by the terms of such plan and applicable Law, and all contributions, premiums and payments for any period that are not yet due are properly accrued to the extent required to be accrued under GAAP.
(k) Except as expressly required under this Agreement or as set forth on Section 5.17(k) of the Company Disclosure Schedule, or as required by applicable Law, neither the execution of this Agreement nor the consummation of the transactions contemplated by this Agreement hereby (either alone or together with any other event) will not (i) entitle any current or former employee of A Service Provider to severance payany compensatory payment or benefit, unemployment compensation including any bonus, retention, severance, retirement or any similar payment; job security payment or benefit, (ii) accelerate the time of payment or vesting ofor trigger any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, or increase the amount ofpayable or trigger any other obligation under, any compensation due to any current or former employee of A; Employee Plan, (iii) reasonably be expected to result in any "excess parachute payment" under SECTION 280G limit or restrict the right of the Code; Company or any of its Subsidiaries or, after the Closing, Parent or any of its Affiliates, to merge, amend or terminate any Employee Plan or (iv) result in any material liability to any present or former employee, including as a result of WARN.
(k) A has no material liability, whether absolute or contingent, including any material obligations under any A Benefit Plan, with respect to any misclassification the payment of any person amount that could, individually or in combination with any other such payment, constitute an “excess parachute payment,” as an independent contractor rather than as an employee, or with respect defined in Section 280G(b)(1) of the Code (without regard to any employee leased from another employersubsection (b)(4) thereof).
(l) A Each Employee Plan which is a “nonqualified deferred compensation plan” subject to Section 409A of the Code has not entered into been established and operated in compliance with Section 409A of the Code in all material respects. Neither the Company nor any transaction with of its Subsidiaries has any A Benefit Planobligation to gross-up, indemnify or otherwise reimburse any current or former Service Provider for any Tax incurred by such Service Provider, including under Section 409A or Section 4999 of the Code.
(m) In respect Neither the Company nor any of all employees of A (other than A's current Chief Executive Officer and A's current Chief Financial Officer)its Subsidiaries is, liabilities of A and its subsidiaries in respect of any (i) severance payments and (ii) payments in respect of the cancellation of outstanding A Options in accordance with SECTION 2.05 hereofnor has it been since January 1, arising 2019, a party to or subject to, or is currently negotiating in connection with entering into, any Collective Bargaining Agreement, and there is no, and, since January 1, 2019, there has not been any, material organizational campaign, petition or other unionization activity pending, or to the consummation Knowledge of the A MergerCompany, shall not exceed $1,300,000 in the aggregatethreatened, seeking recognition of a collective bargaining unit relating to any Company Employee.
(n) SECTION 4.10(n) As of the A Disclosure Schedule sets forth (i) a true and correct list date hereof, there are no material unfair labor practice complaints pending or, to the Knowledge of all individuals who would be entitled to severance payments pursuant to an individual agreement with A the Company, threatened against the Company or any of its subsidiaries Subsidiaries before the National Labor Relations Board or any other Governmental Authority. There is no, and since January 1, 2019, there has not been, any labor strike, slowdown, stoppage, picketing, material interruption of work or lockout pending against the amount of cash severance payments to which each such person would be entitled and (ii) with respect to any formal or informal severance program, plan or arrangement of A Company or any of its subsidiaries that does not involve an individual agreement between A or Subsidiaries, nor, to the Knowledge of the Company, is any of its subsidiaries and any individual, (A) a brief written description of such program, plan or arrangement and (B) the number of individuals entitled to severance benefits under such program, plan or arrangementaction threatened.
(o) The Company and its Subsidiaries are in compliance with all applicable Laws relating to labor and employment in all material respects, including (i) those relating to labor management relations, wages, hours, overtime, employee classification, equal opportunity, discrimination, sexual harassment, disability accommodation, protected leave, civil rights, affirmative action, work authorization, immigration, safety and health, information privacy and security, wage payment, the payment and withholding of Taxes and workers compensation and (ii) the Worker Adjustment and Retraining Notification Act and any comparable foreign, state or local law. Neither the Company nor any of its Subsidiaries is, or since January 1, 2020, has been, a government contractor.
(p) To the knowledge of A based Company’s Knowledge, in the last three (3) years ending on a good faith interpretation of the Stabilization Actdate hereof, (i) except as set forth in SECTION 4.10(o) there has been no allegation of sexual harassment made against any former or current executive officer of the A Disclosure Schedule, no A employee's Company or officer's total compensation (within the meaning any of the Stabilization Act) exceeded $300,000 in calendar year 2000 its Subsidiaries and (ii) with respect the Company and its Subsidiaries have not entered into any settlement agreements related to any persons so identified pursuant to clause (i), A has not made or promised to make any payments or taken any action which may adversely affect the Company's ability to obtain allegations of sexual harassment by a Federal credit instrument under SECTION 101(a)(1) of the Stabilization ActService Provider.
Appears in 1 contract
Samples: Merger Agreement (Zogenix, Inc.)
Employee Benefit Plans; Labor Matters. (a) With Section 4.17(a) of the Company Disclosure Schedule lists each material Employee Plan, including any (i) Employment Agreement with a Service Provider (other than Employment Agreements terminable at-will without the payment of severance or provision of prior notice) and (ii) any Employee Plan providing any retention, change in control or other similar benefits or payments. The Company has furnished to Parent with respect to each employee benefit plan, policy, commitment, program, arrangement and contract (including, without limitation, any employee benefit plan, as defined in SECTION 3(3Employee Plan required to be listed on Section 4.17(a) of ERISA, sponsored, maintained or contributed to, or to which there is an obligation to contribute, by A, or with respect to which A could incur liability under Title IV of ERISA, including, but not limited to, SECTION 4069, 4212(c) or 4204 of ERISA (the "A BENEFIT PLANS"), A has delivered or made available to B and the Company Disclosure Schedule, (A) a true copy thereof (or a description, if such plan is not written) and correct copy of all amendments thereto, (iB) the most recent summary plan description related to each A Benefit Plan and all amendments summary of material modifications thereto, (C) the most recently filed IRS Form 5500 and accompanying schedules and attachments thereto for which a summary plan description is requiredeach Employee Plan required to file IRS Forms 5500, (iiD) each trust agreement the most recently prepared actuarial reports and financial statements, (E) all material, non-routine correspondence relating thereto received from or provided to such the Department of Labor, the Pension Benefit Guaranty Corporation, the IRS or any other Governmental Authority during the past three years, (F) all material, non-routine correspondence with any Company Employee regarding any Employee Plan, and (iiiG) the most recent annual report (Form 5500) filed with the IRSIRS determination, (iv) the most recent actuarial report and/or financial statementnotification, if any, relating to an A Benefit Plan, (v) the most recent determination or opinion letter, if any, issued by the IRS received with respect to any A Benefit Plan qualified under SECTION 401(a) of applicable Employee Plan. No Employee Plans cover Service Providers whose work location is outside the Code, (vi) all material communications with any Governmental Authority (including the Pension Benefit Guaranty Corporation and the IRS) given or received within the last three years, and (vii) a description of all unwritten A Benefit Plans, if anyUnited States.
(b) To Except as would not, individually or in the knowledge aggregate, reasonably be expected to have a Company Material Adverse Effect, to the Knowledge of Athe Company, each A Benefit Plan no current Company Employee or Independent Contractor is a party to, or is otherwise bound in any way by, any Contract that would reasonably be expected to interfere with the performance of such Person’s duties to the Company or its Subsidiaries.
(c) The Company has been administered made available to Parent a true and complete list in all material respects (the “Employee Schedule”) that sets forth, as of October 9, 2019, for each Company Employee, each such Company Employee’s employee identification number, job title, base salary or wage rate, target annual bonus opportunity, whether part-time or full-time and status as exempt or non-exempt under the Fair Labor Standards Act. The United States is the principal place of employment or engagement for each Company Employee and Independent Contractor.
(d) Neither the Company nor any of its ERISA Affiliates sponsors, maintains, administers or contributes to (or has any obligation to contribute to) or has any direct or indirect liability with respect to: (i) a “defined benefit plan” (as defined in accordance Section 3(35) of ERISA); (ii) a “multiemployer plan” (as defined in Sections 4001(a)(3) and 3(37)(A) of ERISA); (iii) a pension plan subject to Section 302 or Title IV of ERISA or Section 412 or 4971 of the Code; (iv) a multiple employer welfare arrangement (as defined in Section 3(40) of ERISA or applicable state Law); or (v) a “multiple employer plan” (as defined in Section 413(c) of the Code).
(e) Each Employee Plan that is intended to be qualified under Section 401(a) of the Code (i) is so qualified, and no event has occurred since the date of such determination that would reasonably be expected to result in the loss of such qualification and (ii) is subject to a currently effective determination letter, or opinion letter on which the Company or applicable Subsidiary that is the plan sponsor is entitled to rely, from the IRS.
(f) Except as would not, individually or in the aggregate, reasonably be expected to have a Company Material Adverse Effect, (i) each Employee Plan has been established, maintained, funded and administered in compliance with its terms and all contributions required to be made under the terms of any of the A Benefit Plans as of the date hereof have been timely made or have been reflected on A's most recent consolidated balance sheet. All of the A Benefit Plans are in compliance with all applicable requirements of Law, including ERISA and the Code, except to the extent that any such noncompliance would not have an A Material Adverse Effect.
(cii) There are no Action (other than routine claims for benefits) is pending actions, claims or lawsuits that have been asserted regarding the A Benefit Plans directly against or, to the knowledge of ACompany’s Knowledge, is threatened against any fiduciary of any A Benefit Plan Employee Plan, (iii) all returns, reports and disclosure statements required to be made under ERISA and the Code with respect to all Employee Plans have been timely filed or delivered and (iv) neither the Company nor any of its ERISA Affiliates nor, to the Knowledge of the Company, any of their operation (other than routine benefit claims) which could result directors, officers, employees or agents, nor any fiduciary, trustee or administrator of any Employee Plan or trust created under any Employee Plan, has engaged in liabilityor been a party to any “prohibited transaction” as defined in Section 4975 of the Code and Section 406 of ERISA.
(dg) There is no A Benefit No asset of any Employee Plan that is a "multiemployer plan" intended to be qualified under Section 401(a) of the Code consists of employer securities (within the meaning of SECTION 3(37Section 407(d)(1) of ERISA).
(eh) Each A Benefit No Employee Plan which is a "group health plan" (as defined in SECTION 607(1) of ERISA) is in compliance with SECTION 601 et seq. of ERISAprovides or promises, the Health Insurance Portability and Accountability Act and any other applicable federal, state or local law.
(f) Neither A nor any subsidiary of A is a party to any collective bargaining or other labor union contract applicable to persons employed by A or any subsidiary of A and neither A the Company nor any subsidiary of A is negotiating any collective bargaining agreements. As of the date hereof, there is no labor dispute, strike or work stoppage against A or any subsidiary of A pending or, to the knowledge of A, threatened in writing which may interfere with the business activities of A, except where such dispute, strike or work stoppage would not have an A Material Adverse Effect. As of the date hereof, to the knowledge of A, none of A or any subsidiary of A or their respective representatives or employees, has committed any unfair labor practices in connection with the operation of the business of A or any of its subsidiariesSubsidiaries have promised to provide in the future, and there is no charge any post-employment health, medical, dental, disability, hospitalization, life or complaint against A similar benefits (whether insured or self-insured) to any subsidiary of A by the National Labor Relations Board current or any comparable federal or state agency pending or threatened in writing, except where such unfair labor practice, charge or complaint would not have an A Material Adverse Effect.
former Service Provider (g) A has delivered to B true and correct copies of other than (i) all employment agreements with officers of A and the subsidiaries of A; as required by applicable Law, (ii) all severance plans, agreements, programs and policies coverage through the end of A and the subsidiaries month of A employment termination in accordance with the terms of the Employee Plan or relating to their employees; (iii) all plans, programs, agreements and other arrangements intended under an Employment Agreement or separation agreement made available to satisfy the performance-based exception under SECTION 162(m) of the Code; and (iv) all plans, programs, agreements and other arrangements of A and the subsidiaries of A with or relating to their respective employees which contain change in control provisions.
(h) Except as required by Law, no A Benefit Plan provides, or has liability with respect to, retiree medical or other retiree welfare benefits to any personParent).
(i) A is not a party to any agreement or arrangement that Except as would resultnot, separately individually or in the aggregate, in the payment of any "excess parachute payments" reasonably be expected to have a Company Material Adverse Effect, all contributions, premiums and payments that are due have been made for each Employee Plan within the meaning time periods prescribed by the terms of SECTION 280G of such plan and applicable Law, and all contributions, premiums and payments for any period ending on or before the Code (disregarding SECTION 280G(b)(4) of Effective Time that are not due are properly accrued to the Code)extent required to be accrued under GAAP.
(j) The Except as expressly required under this Agreement, neither the execution of this Agreement nor the consummation of the transactions contemplated by this Agreement hereby (either alone or together with any other event) will not (i) entitle any current or former employee of A Service Provider to severance payany payment or benefit, unemployment compensation including any bonus, retention, severance, retirement or any similar payment; job security payment or benefit, (ii) accelerate the time of payment or vesting ofor trigger any payment or funding (through a grantor trust or otherwise) of compensation or benefits under, or increase the amount ofpayable or trigger any other obligation under, any compensation due to any current or former employee of A; Employee Plan, (iii) reasonably be expected to result in any "excess parachute payment" under SECTION 280G limit or restrict the right of the Code; Company or any of its Subsidiaries or, after the Closing, Parent or any of its Affiliates, to merge, amend or terminate any Employee Plan or (iv) result in the payment of any material liability amount that could, individually or in combination with any other such payment, constitute an “excess parachute payment,” as defined in Section 280G(b)(1) of the Code (without regard to any present or former employee, including as a result of WARNsubsection (b)(4) thereof).
(k) A Each Employee Plan which is a “nonqualified deferred compensation plan” subject to Section 409A of the Code has no been established and operated in compliance with Section 409A of the Code in all material liabilityrespects. Neither the Company nor any of its Subsidiaries has any obligation to gross-up, whether absolute indemnify or contingentotherwise reimburse any current or former Service Provider for any Tax incurred by such Service Provider, including any material obligations under any A Benefit Plan, with respect to any misclassification Section 409A or Section 4999 of any person as an independent contractor rather than as an employee, or with respect to any employee leased from another employerthe Code.
(l) A Neither the Company nor any of its Subsidiaries is, nor has it been since January 1, 2017, a party to or subject to, or is currently negotiating in connection with entering into, any Collective Bargaining Agreement, and there is no, and, since January 1, 2017, there has not entered into been any, material organizational campaign, petition or other unionization activity pending, or to the Knowledge of the Company, threatened, seeking recognition of a collective bargaining unit relating to any transaction with any A Benefit PlanCompany Employee.
(m) In respect of all employees of A (other than A's current Chief Executive Officer and A's current Chief Financial Officer), liabilities of A and its subsidiaries in respect of any (i) severance payments and (ii) payments in respect As of the cancellation of outstanding A Options in accordance with SECTION 2.05 date hereof, arising in connection with there are no material unfair labor practice complaints pending or, to the consummation Knowledge of the A MergerCompany, shall threatened against the Company or any of its Subsidiaries before the National Labor Relations Board or any other Governmental Authority. There is no, and since January 1, 2017, there has not exceed $1,300,000 in been, any labor strike, slowdown, stoppage, picketing, material interruption of work or lockout pending against the aggregateCompany or any of its Subsidiaries, nor, to the Knowledge of the Company, is any such action threatened.
(n) SECTION 4.10(n) of Except as would not, individually or in the A Disclosure Schedule sets forth aggregate, reasonably be expected to have a Company Material Adverse Effect, the Company and its Subsidiaries are in compliance with all applicable Laws relating to labor and employment, including (i) a true those relating to labor management relations, wages, hours, overtime, employee classification, equal opportunity, discrimination, sexual harassment, disability accommodation, protected leave, civil rights, affirmative action, work authorization, immigration, safety and correct list health, information privacy and security, wage payment, the payment and withholding of all individuals who would be entitled to severance payments pursuant to an individual agreement with A or any of its subsidiaries Taxes and the amount of cash severance payments to which each such person would be entitled workers compensation and (ii) with respect to any formal or informal severance program, plan or arrangement of A or any of its subsidiaries that does not involve an individual agreement between A or any of its subsidiaries the Worker Adjustment and Retraining Notification Act and any individualcomparable foreign, (A) a brief written description of such program, plan state or arrangement and (B) the number of individuals entitled to severance benefits under such program, plan or arrangementlocal law.
(o) To the knowledge of A based Company’s Knowledge, in the last three (3) years ending on a good faith interpretation of the Stabilization Actdate hereof, (i) except as set forth in SECTION 4.10(o) no allegations of sexual harassment have been made against any former or current executive officer of the A Disclosure Schedule, no A employee's Company or officer's total compensation (within the meaning any of the Stabilization Act) exceeded $300,000 in calendar year 2000 its Subsidiaries and (ii) with respect the Company and its Subsidiaries have not entered into any settlement agreements related to any persons so identified pursuant to clause (i), A has not made or promised to make any payments or taken any action which may adversely affect the Company's ability to obtain allegations of sexual harassment by a Federal credit instrument under SECTION 101(a)(1) of the Stabilization ActService Provider.
Appears in 1 contract
Employee Benefit Plans; Labor Matters. (a) Schedule 3.11 lists or describes any pension, retirement, savings, disability, medical, dental, health, life (including any individual life insurance policy as to which SDI is the owner, beneficiary or both), death benefit, group insurance, profit sharing, deferred compensation, stock option, bonus incentive, vacation pay, severance pay, "cafeteria" or "flexible benefit" plan under Section 125 of the Code, or other employee benefit plan, trust, arrangement, contract, agreement, policy or commitment, under which employees of SDI or its Subsidiaries are entitled to participate by reason of their, or relating to, employment with SDI or its Subsidiaries (other than relating to "at-will" employment), (i) to which SDI or a Subsidiary is a party or a sponsor or a fiduciary thereof or (ii) with respect to which SDI or a Subsidiary has made payments, contributions or commitments, or has any liability (collectively, the "SDI Employee Benefit Plans"). With respect to each employee benefit planSDI Employee Benefit Plan listed on Schedule 3.11, policy, commitment, program, arrangement and contract (including, without limitation, any employee benefit plan, as defined in SECTION 3(3) of ERISA, sponsored, maintained or contributed to, or SDI has to which there is an obligation the extent applicable provided to contribute, by A, or with respect to which A could incur liability under Title IV of ERISA, including, but not limited to, SECTION 4069, 4212(c) or 4204 of ERISA (the "A BENEFIT PLANS"), A has delivered or made available to B and the Company a EnSys true and correct copy complete copies of (iA) the plan document, trust agreement and any other contractual document governing such Plan, (B) the summary plan description, (C) all Form 5500 annual reports and attachments, and (D) the most recent summary plan description related to each A Benefit Plan and all amendments thereto for which a summary plan description is required, Internal Revenue Service (ii"IRS") each trust agreement relating to such Benefit Plan, (iii) the most recent annual report (Form 5500) filed with the IRS, (iv) the most recent actuarial report and/or financial statement, if any, relating to an A Benefit Plan, (v) the most recent determination letter, if any, issued by the IRS with respect to any A Benefit Plan qualified under SECTION 401(a) of the Code, (vi) all material communications with any Governmental Authority (including the Pension Benefit Guaranty Corporation and the IRS) given or received within the last three years, and (vii) a description of all unwritten A Benefit Plans, if any.
(b) To the knowledge of A, each A SDI Employee Benefit Plan has Plans have been operated and administered by SDI in compliance in all material respects in accordance with its their respective terms and all contributions required applicable United States and state laws relating to be made under the terms of any of the A Benefit Plans as of the date hereof have been timely made employment or have been reflected on A's most recent consolidated balance sheet. All of the A Benefit Plans are in compliance with all applicable requirements of Lawlabor matters, including ERISA without limitation, the Employee Retirement Income Security Act of 1974, as amended ("ERISA") and the Code, except to the extent that any such noncompliance would not have an A Material Adverse Effect.
(c) There are no pending actions, claims or lawsuits that have been asserted regarding the A Benefit Plans directly or, to the knowledge of A, against any fiduciary of any A Each SDI Employee Benefit Plan that is intended to be tax qualified under Section 401(a) of the Code has received, or SDI has applied for, a favorable determination letter from the IRS stating that the Plan meets the requirements of the Code and that any trust or trusts associated with respect to their operation (other than routine benefit claimsthe plan are tax exempt under Section 501(a) which could result in liabilityof the Code.
(d) There is no A Benefit Plan that is a "multiemployer plan" (SDI does not maintain any defined benefit plan covering employees of SDI or its Subsidiaries within the meaning of SECTION 3(37Section 3(35) of ERISA).
(e) Each A Benefit Plan which is a "group health plan" (as defined in SECTION 607(1) of ERISA) is in compliance with SECTION 601 et seq. of ERISA, the Health Insurance Portability and Accountability Act and any other applicable federal, state or local law.
(f) Neither A SDI nor any subsidiary of A its Subsidiaries is a party to any collective bargaining or other labor union contract contract.
(f) All contributions and payments of insurance premiums required to be made with respect to SDI Employee Benefit Plans have been made when due.
(g) Except as set forth on Schedule 3.11, the reporting and disclosure requirements of ERISA applicable to persons employed by A SDI Employee Benefit Plans, and the continuation coverage requirements of Code Section 4980B and ERISA Sections 601-609 applicable to SDI Employee Benefit Plans, have been complied with in all material respects.
(h) There have been no "prohibited transactions" within the meaning of Code Section 4975 or ERISA Section 406 with respect to SDI Employee Benefit Plans that could subject EnSys, the Surviving Corporation, SDI or any subsidiary of A and neither A nor their respective Subsidiaries to any subsidiary of A is negotiating any collective bargaining agreements. As of tax, penalty or other liability under Code Section 4975 or under ERISA Sections 409 or 502(i).
(i) There are no actions, suits or claims with respect to SDI Employee Benefit Plans (other than routine claims for benefits in the date hereof, there is no labor dispute, strike or work stoppage against A or any subsidiary of A ordinary course) pending or, to the knowledge of ASDI, threatened in writing which may interfere with the business activities of Athreatened, except where such dispute, strike or work stoppage would not have an A Material Adverse Effect. As of the date hereof, and to the knowledge of ASDI, none of A or any subsidiary of A or their respective representatives or employees, has committed any unfair labor practices in connection with the operation of the business of A or any of its subsidiaries, and there is are no charge or complaint against A or any subsidiary of A by the National Labor Relations Board or any comparable federal or state agency pending or threatened in writing, except where such unfair labor practice, charge or complaint would not have an A Material Adverse Effect.
(g) A has delivered to B true and correct copies of (i) all employment agreements with officers of A and the subsidiaries of A; (ii) all severance plans, agreements, programs and policies of A and the subsidiaries of A with or relating to their employees; (iii) all plans, programs, agreements and other arrangements intended to satisfy the performance-based exception under SECTION 162(m) of the Code; and (iv) all plans, programs, agreements and other arrangements of A and the subsidiaries of A with or relating to their respective employees facts which contain change in control provisions.
(h) Except as required by Law, no A Benefit Plan provides, or has liability with respect to, retiree medical or other retiree welfare benefits could give rise to any person.
such actions, suits or claims (i) A is not a party to any agreement or arrangement that would result, separately or other than routine claims for benefits in the aggregate, in the payment of any "excess parachute payments" within the meaning of SECTION 280G of the Code (disregarding SECTION 280G(b)(4) of the Codeordinary course).
(j) The Neither SDI nor any other entity included in the same controlled group of organizations as SDI within the meaning of Code Sections 414(b), (c), (m) or (o) has ever sponsored, maintained or contributed to, or been obligated to contribute to, any employee benefit plan subject to Title IV of ERISA or the minimum funding requirements of Code Section 412.
(k) Except as set forth on Schedule 3.11, the execution and delivery of this Agreement and the consummation of the transactions contemplated by this Agreement will hereunder shall not (i) entitle any current or former employee of A to severance pay, unemployment compensation or any similar payment; (ii) accelerate the time of payment or vesting of, or increase the amount of, any compensation due to any current or former employee of A; (iii) reasonably be expected to result in any "excess parachute payment" under SECTION 280G increase in or acceleration of the Code; any obligation or liability (iv) result in any material liability to any present or former employee, including as a result of WARN.
(k) A has no material liability, whether absolute or contingent, including any material obligations under any A Benefit Plan, with respect to any misclassification of any person as an independent contractor rather than as an employee, accrued benefits or with respect to any employee leased from another employer.
(l) A has not entered into any transaction with any A Benefit Plan.
(m) In respect of all employees of A (other than A's current Chief Executive Officer and A's current Chief Financial Officer), liabilities of A and its subsidiaries in respect of any (i) severance payments and (ii) payments in respect of the cancellation of outstanding A Options in accordance with SECTION 2.05 hereof, arising in connection with the consummation of the A Merger, shall not exceed $1,300,000 in the aggregate.
(n) SECTION 4.10(n) of the A Disclosure Schedule sets forth (i) a true and correct list of all individuals who would be entitled to severance payments pursuant to an individual agreement with A or any of its subsidiaries and the amount of cash severance payments to which each such person would be entitled and (iiotherwise) with respect to any formal SDI Employee Benefit Plan or informal severance program, plan to any employee or arrangement former employee of A SDI or any of its subsidiaries that does not involve an individual agreement between A or any of its subsidiaries and any individual, (A) a brief written description of such program, plan or arrangement and (B) the number of individuals entitled to severance benefits under such program, plan or arrangementSubsidiaries.
(o) To the knowledge of A based on a good faith interpretation of the Stabilization Act, (i) except as set forth in SECTION 4.10(o) of the A Disclosure Schedule, no A employee's or officer's total compensation (within the meaning of the Stabilization Act) exceeded $300,000 in calendar year 2000 and (ii) with respect to any persons so identified pursuant to clause (i), A has not made or promised to make any payments or taken any action which may adversely affect the Company's ability to obtain a Federal credit instrument under SECTION 101(a)(1) of the Stabilization Act.
Appears in 1 contract
Samples: Merger Agreement (Ensys Environmental Products Inc /De/)
Employee Benefit Plans; Labor Matters. (ai) With respect to each employee benefit plan, policy, commitment, program, arrangement and contract (including, without limitation, any "employee benefit plan, ," as defined in SECTION Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") and any bonus, sponsoreddeferred compensation, stock bonus, stock purchase, restricted stock, stock option, employment, termination, change in control and severance plan, program, arrangement and contract), to which MCI or any of its Subsidiaries is a party, which is maintained or contributed to, to by MCI or to which there is an obligation to contribute, by Aany of its Subsidiaries, or with respect to which A MCI or any of its Subsidiaries could incur material liability under Title IV of ERISA, including, but not limited to, SECTION Section 4069, 4201 or 4212(c) or 4204 of ERISA (the "A BENEFIT PLANSMCI Benefit Plans"), A MCI has delivered or made available to B and the Company BT a true and correct complete copy of (iA) the most recent summary plan description related to each A Benefit Plan and all amendments thereto for which a summary plan description is required, (ii) each trust agreement relating to such MCI Benefit Plan, (iiiB) the most recent annual report (Form 5500) filed with the Internal Revenue Service (the "IRS"), (ivC) each trust or other funding arrangement relating to such MCI Benefit Plan, (D) the most recent summary plan description related to each MCI Benefit Plan for which a summary plan description is required, (E) the most recent actuarial report and/or financial statement, (if any, applicable) relating to an A MCI Benefit Plan, Plan and (vF) the most recent determination letter, if any, issued by the IRS with respect to any A MCI Benefit Plan qualified under SECTION Section 401(a) of the Code, .
(viii) all material communications with any Governmental Authority (including Each of the Pension MCI Benefit Guaranty Corporation Plans that is an "employee pension benefit plan" within the meaning of Section 3(2) of ERISA and that is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter from the IRS) given or received within the last three years, and MCI is not aware of any circumstances likely to result in the revocation of any such favorable determination letter that would have a Material Adverse Effect on MCI.
(viiiii) a description of all unwritten A With respect to the MCI Benefit Plans, if any.
(b) To the knowledge of A, each A Benefit Plan no event has been administered in all material respects in accordance with its terms and all contributions required to be made under the terms of any of the A Benefit Plans as of the date hereof have been timely made or have been reflected on A's most recent consolidated balance sheet. All of the A Benefit Plans are in compliance with all applicable requirements of Law, including ERISA and the Code, except to the extent that any such noncompliance would not have an A Material Adverse Effect.
(c) There are no pending actions, claims or lawsuits that have been asserted regarding the A Benefit Plans directly oroccurred and, to the knowledge of A, against any fiduciary of any A Benefit Plan with respect to their operation (other than routine benefit claims) which could result in liability.
(d) There is no A Benefit Plan that is a "multiemployer plan" (within the meaning of SECTION 3(37) of ERISA).
(e) Each A Benefit Plan which is a "group health plan" (as defined in SECTION 607(1) of ERISA) is in compliance with SECTION 601 et seq. of ERISA, the Health Insurance Portability and Accountability Act and any other applicable federal, state or local law.
(f) Neither A nor any subsidiary of A is a party to any collective bargaining or other labor union contract applicable to persons employed by A or any subsidiary of A and neither A nor any subsidiary of A is negotiating any collective bargaining agreements. As of the date hereofMCI, there is exists no labor disputecondition or set of circumstances, strike or work stoppage against A or any subsidiary of A pending or, to the knowledge of A, threatened in writing which may interfere with the business activities of A, except where such dispute, strike or work stoppage would not have an A Material Adverse Effect. As of the date hereof, to the knowledge of A, none of A or any subsidiary of A or their respective representatives or employees, has committed any unfair labor practices in connection with the operation of the business of A which MCI or any of its subsidiariesSubsidiaries could be subject to any liability under the terms of such MCI Benefit Plans, and there is no charge or complaint against A ERISA, the Code or any subsidiary of A by the National Labor Relations Board or any comparable federal or state agency pending or threatened in writingother applicable law which, except where such unfair labor practice, charge or complaint would not have an A Material Adverse Effect.
(g) A has delivered to B true and correct copies of (i) all employment agreements with officers of A and the subsidiaries of A; (ii) all severance plans, agreements, programs and policies of A and the subsidiaries of A with or relating to their employees; (iii) all plans, programs, agreements and other arrangements intended to satisfy the performance-based exception under SECTION 162(m) of the Code; and (iv) all plans, programs, agreements and other arrangements of A and the subsidiaries of A with or relating to their respective employees which contain change in control provisions.
(h) Except as required by Law, no A Benefit Plan provides, or has liability with respect to, retiree medical or other retiree welfare benefits to any person.
(i) A is not a party to any agreement or arrangement that would result, separately individually or in the aggregate, in the payment of any "excess parachute payments" within the meaning of SECTION 280G of the Code (disregarding SECTION 280G(b)(4) of the Code)would have a Material Adverse Effect on MCI.
(j) The consummation of the transactions contemplated by this Agreement will not (i) entitle any current or former employee of A to severance pay, unemployment compensation or any similar payment; (ii) accelerate the time of payment or vesting of, or increase the amount of, any compensation due to any current or former employee of A; (iii) reasonably be expected to result in any "excess parachute payment" under SECTION 280G of the Code; or (iv) result in any material liability to any present or former employee, including as a result of WARN.
(k) A has no material liability, whether absolute or contingent, including any material obligations under any A Benefit Plan, with respect to any misclassification of any person as an independent contractor rather than as an employee, or with respect to any employee leased from another employer.
(l) A has not entered into any transaction with any A Benefit Plan.
(m) In respect of all employees of A (other than A's current Chief Executive Officer and A's current Chief Financial Officer), liabilities of A and its subsidiaries in respect of any (i) severance payments and (ii) payments in respect of the cancellation of outstanding A Options in accordance with SECTION 2.05 hereof, arising in connection with the consummation of the A Merger, shall not exceed $1,300,000 in the aggregate.
(n) SECTION 4.10(n) of the A Disclosure Schedule sets forth (i) a true and correct list of all individuals who would be entitled to severance payments pursuant to an individual agreement with A or any of its subsidiaries and the amount of cash severance payments to which each such person would be entitled and (ii) with respect to any formal or informal severance program, plan or arrangement of A or any of its subsidiaries that does not involve an individual agreement between A or any of its subsidiaries and any individual, (A) a brief written description of such program, plan or arrangement and (B) the number of individuals entitled to severance benefits under such program, plan or arrangement.
(o) To the knowledge of A based on a good faith interpretation of the Stabilization Act, (i) except as set forth in SECTION 4.10(o) of the A Disclosure Schedule, no A employee's or officer's total compensation (within the meaning of the Stabilization Act) exceeded $300,000 in calendar year 2000 and (ii) with respect to any persons so identified pursuant to clause (i), A has not made or promised to make any payments or taken any action which may adversely affect the Company's ability to obtain a Federal credit instrument under SECTION 101(a)(1) of the Stabilization Act.
Appears in 1 contract
Employee Benefit Plans; Labor Matters. (a) With respect to each employee benefit plan, policy, commitment, program, arrangement and contract (including, without limitation, any employee benefit plan"Employee Benefit Plan", as defined in SECTION Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA, sponsored")), maintained or contributed to, or to which there is an obligation to contribute, by Athe Company, or with respect to which A the Company could incur liability under Title IV of ERISA, including, but not limited to, SECTION 4069, 4212(cSection 4069 or 4201(c) or 4204 of ERISA (the "A BENEFIT PLANS"Company Benefit Plans" ), A the Company has delivered or made available to B and the Company Buyers a true and correct copy of (i) the most recent summary plan description related to each A Benefit Plan and all amendments thereto for which a summary plan description is required, (ii) each trust agreement relating to such Benefit Plan, (iii) the most recent annual report (Form 5500) filed with the Internal Revenue Service (the "IRS"), (ii) such Company Benefit Plan, (iii) each trust agreement relating to such Company Benefit Plan, (iv) the most recent summary plan described for each Company Benefit Plan for which a summary plan described is required, (v) the most recent actuarial report and/or financial statementor valuation relating to a Company Benefit Plan subject to Title IV of ERISA, if any, relating to an A Benefit Plan, and (vvi) the most recent determination letter, if any, issued by the IRS with respect to any A Company Benefit Plan qualified under SECTION 401(aSection 401 (a) of the Code, (vi) all material communications with any Governmental Authority (including the Pension Benefit Guaranty Corporation and the IRS) given or received within the last three years, and (vii) a description of all unwritten A Benefit Plans, if any.
(b) To With respect to the Company Benefit Plans, no event has occurred and, to the knowledge of Athe Principal Stockholders, each A Benefit Plan has been administered there exists no condition or set of circumstances, in all material respects in accordance connection with its terms and all contributions required which the Stockholders could be subject to be made any liability under the terms of such Company Benefit Plans, ERISA, the Code or any of the A Benefit Plans as of the date hereof have been timely made or have been reflected on A's most recent consolidated balance sheet. All of the A Benefit Plans are in compliance with all other applicable requirements of Law, including ERISA and the Codelaw, except to the extent that any such noncompliance as would not have an A a Company Material Adverse Effect. The Company has no actual or contingent liability under Title IV of ERISA (other than the payment of premiums to the Pension Benefit Guaranty Corporation), except as would not have a Company Material Adverse Effect.
(c) There are no pending actions, claims or lawsuits that have been asserted regarding the A Benefit Plans directly or, The Company has made available to the knowledge of A, against any fiduciary of any A Benefit Plan with respect to their operation (other than routine benefit claims) which could result in liability.
(d) There is no A Benefit Plan that is a "multiemployer plan" (within the meaning of SECTION 3(37) of ERISA).
(e) Each A Benefit Plan which is a "group health plan" (as defined in SECTION 607(1) of ERISA) is in compliance with SECTION 601 et seq. of ERISA, the Health Insurance Portability and Accountability Act and any other applicable federal, state or local law.
(f) Neither A nor any subsidiary of A is a party to any collective bargaining or other labor union contract applicable to persons employed by A or any subsidiary of A and neither A nor any subsidiary of A is negotiating any collective bargaining agreements. As of the date hereof, there is no labor dispute, strike or work stoppage against A or any subsidiary of A pending or, to the knowledge of A, threatened in writing which may interfere with the business activities of A, except where such dispute, strike or work stoppage would not have an A Material Adverse Effect. As of the date hereof, to the knowledge of A, none of A or any subsidiary of A or their respective representatives or employees, has committed any unfair labor practices in connection with the operation of the business of A or any of its subsidiaries, and there is no charge or complaint against A or any subsidiary of A by the National Labor Relations Board or any comparable federal or state agency pending or threatened in writing, except where such unfair labor practice, charge or complaint would not have an A Material Adverse Effect.
(g) A has delivered to B true and correct copies of Buyers (i) copies of all employment agreements with officers or key employees of A and the subsidiaries Company or any of Aits Subsidiaries; (ii) copies of all severance plans, agreements, programs and policies of A and the subsidiaries of A with or relating to their employeesCompany; (iii) all plans, programs, agreements and other arrangements intended to satisfy the performance-based exception under SECTION 162(m) copies of the Code; and (iv) all plans, programs, agreements and other arrangements of A and the subsidiaries of A with or relating to their respective employees Company which contain change in control provisions; and (iv) copies, if any, of any stock option plans.
(hd) Except as set forth in Schedule 2.11(d), neither the execution and delivery of this Agreement nor the consummation of the transactions contemplated hereby will (i) result in any material payment (including, without limitation, severance, unemployment compensation, "golden parachute" or otherwise) becoming due to any director, officer or employee of the Company under any Company Benefit Plan or otherwise; (ii) materially increase any benefits otherwise payable under any Company Benefit Plan or (iii) result in any acceleration of the time of payment or vesting of any material benefits.
(e) Except as set forth in Schedule 2.11(e) or as required by Lawlaw, no A Company Benefit Plan provides, or has liability with respect to, provides retiree medical or other retiree welfare life insurance benefits to any person.
(if) A is Except where it would not have a party to any agreement or arrangement that would resultCompany Material Adverse Effect, separately or in the aggregate, in the payment of any "excess parachute payments" within the meaning of SECTION 280G of the Code (disregarding SECTION 280G(b)(4) of the Code).
(j) The consummation of the transactions contemplated by this Agreement will not Company (i) entitle any current or former employee is in material compliance with all applicable federal, state and local laws, rules and regulations (domestic and foreign) respecting employment, employment practices, labor, terms and conditions of A employment and wages and hours, in each case, with respect to severance pay, unemployment compensation or any similar paymentemployees; (ii) accelerate has withheld all amounts required by law or by agreement to be withheld from the time of payment or vesting ofwages, or increase the amount of, any compensation due salaries and other payments to any current or former employee of Aemployees; (iii) reasonably be expected is not liable for any arrears of wages or any taxes or any penalty for failure to result in comply with any "excess parachute payment" under SECTION 280G of the Codeforegoing; or (iv) result in any material liability to any present or former employee, including as a result of WARN.
(k) A has no material liability, whether absolute or contingent, including any material obligations under any A Benefit Plan, with respect to any misclassification of any person as an independent contractor rather than as an employee, or with respect to any employee leased from another employer.
(l) A has not entered into any transaction with any A Benefit Plan.
(m) In respect of all employees of A (other than A's current Chief Executive Officer and A's current Chief Financial Officer), liabilities of A and its subsidiaries in respect of any (i) severance payments and (ii) payments in respect of the cancellation of outstanding A Options in accordance with SECTION 2.05 hereof, arising in connection with the consummation of the A Merger, shall not exceed $1,300,000 in the aggregate.
(n) SECTION 4.10(n) of the A Disclosure Schedule sets forth (i) a true and correct list of all individuals who would be entitled to severance payments pursuant to an individual agreement with A or any of its subsidiaries and the amount of cash severance payments to which each such person would be entitled and (ii) with respect to any formal or informal severance program, plan or arrangement of A or any of its subsidiaries that does not involve an individual agreement between A or any of its subsidiaries and any individual, (A) a brief written description of such program, plan or arrangement and (B) the number of individuals entitled to severance benefits under such program, plan or arrangement.
(o) To the knowledge of A based on a good faith interpretation of the Stabilization Act, (i) except as set forth in SECTION 4.10(o) of the A Disclosure Schedule, no A employee's or officer's total compensation (within the meaning of the Stabilization Act) exceeded $300,000 in calendar year 2000 and (ii) with respect to any persons so identified pursuant to clause (i), A has not made or promised to make any payments or taken any action which may adversely affect the Company's ability to obtain a Federal credit instrument under SECTION 101(a)(1) of the Stabilization Act.and
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